LIBRARY 

OF  THE 

UNIVERSITY  OF  CALIFORNIA, 

RECEIVED    BY   EXCHANGE 

Class     r 


THE  TERRITORIAL  BASIS  OF  GOVERNMENT 
UNDER  THE  STATE  CONSTITUTIONS 

Local  Divisions  and  Rules  for  Legislative  Apportionment 


BY 


ALFRED  ZANTZINGER  REED 


SUBMITTED  IN  PARTIAL  FULFILMENT  OF  THE  REQUIREMENTS 
FOR  THE  DEGREE  OF  DOCTOR  OF  PHILOSOPHY 

IN  THE 

N 

FACULTY  OF  POLITICAL  SCIENCE 
COLUMBIA  UNIVERSITY 


NEW  YORK 
IQII 


PREFACE 

IN  the  extremely  elaborate  jpolitical  structure  of  the 
United  States,  as,  indeed,  of  any  nation,  the  local  units 
within  which  governmental  and  party  organs  operate  con- 
stitute, in  more  senses  than  one,  the  foundation  lines  of  the 
entire  edifice.  The  division  of  the  Union  into  States  is,  of 
course,  the  prime  fact  in  our  political  life;  but  of  hardly 
less  importance  than  this  is  the  division  of  the  States 
themselves  into  counties  and  towns,  and  into  districts  for 
legislative  representation.  The  purpose  of  this  study  is 
to  present,  in  form  convenient  for  reference,  and  with  due 
regard  to  their  historical  relationship  with  one  another, 
those  provisions  of  our  American  State  Constitutions  which 
bear  upon  the  formation  of  these,  and  other,  interior  dis- 
tricts. 

I  should  like  to  explain  why  I  have  chosen  a  subject  of 
enquiry  which,  on  its  surface,  seems  far  removed  from  the 
pressing  political  problems  of  the  day;  and  why,  having 
chosen  it,  I  have  treated  it  in  a  highly  technical  manner. 

The  constitutional  history  of  government  is  the  veriest 
dry-4)ones  of  an  exceedingly  human  topic.  It  is  not  merely 
that  Constitutions  contain  only  a  small  portion  of  the  law 
on  the  subject,  needing  to  be  supplemented  by  judicial  con- 
struction, by  legislative  enactment,  by  those  party  regula- 
tions which  are  as  much  a  part  of  our  common  law  as  the 
customs  of  the  British  Constitution.  Law  itself  is  meaning- 
less until  we  include  the  dominating  personality  who  works 
within  its  forms,  influencing  legislators,  cajoling  the  popu- 
lar vote,  making  those  evershifting  combinations  which  we 
397]  5 


233037 


6  PREFACE  [398 

term  "majorities",  evoking  and  making  active  those  powers, 
in  short,  which  of  themselves  merely  "  reside  "  in  plural 
organs.  All  this  on  the  side  of  structure  alone.  There  remain 
the  procession  of  external  events  which  determine  this  struct- 
ure, in  large  part,  and  determine  entirely  the  problems  which 
it  has  to  face — the  cast  of  popular  thought  and  feeling,  with- 
out adjustment  to  which  no  political  system  can  long  endure 
— the  consideration,  finally,  that  politics  itself  is  only  a 
means  to  an  end,  and  that  the  question  of  what  the  govern- 
ment of  a  people  shall  be  is  of  infinitely  small  importance 
compared  with  the  question  of  what  happens  to  the  people 
thus  governed.  What  value  has  any  system  of  government 
except  as  a  means  for  conserving  free  institutions?  On 
what  does  our  belief,  not  merely  in  democratic  rule,  but  in 
law  and  order  itself  depend,  other  than  a  conviction  that 
these  afford  the  only  sure  guarantees  for  freedom  ?  No  one 
who  is  incapable  of  seeing  the  topic  of  government  as  a 
whole  is  fit  to  treat  any  part  of  it. 

Because  the  topic  should  be  seen  as  a  whole,  however, 
it  by  no  means  follows  that  it  should  be  so  treated.  Quite 
the  reverse.  Politics  is  an  exceedingly  technical  profession 
—how  technical,  I  think  few  understand  who  have  not  had 
even  a  slight  practical  acquaintance  with  it.  It  is  a  pity  that 
it  must  to  some  extent  always  be  so,  because  of  the  com- 
plexity of  modern  life.  It  is  a  defect  of  our  system  of  gov- 
ernment that  it  is  needlessly  so,  because  of  unpruned  ex- 
crescences and  traditional  deadwood.  But  there  is  nothing 
to  be  gained  by  blinking  facts  and  thinking-  that  it  can  be 
pursued  on  an  old-fashioned  amateur  basis.  Those  who 
accomplish  most  in  it  are  those  who  have  studied  it  most 
carefully  in  all  its  wearisome  and  often  degrading  detail. 
And  even  they  usually  know  very  little  about  it.  It  is  a  pro- 
fession to  be  practiced  by  experts,  and  only  pseudo-experts 
exist — the  men  who  have  picked  up  an  empirical  knowledge 


399]  PREFACE  7 

of  its  present-day  intricacies,  but  are  rarely  capable  of  en- 
acting broad  remedial  measures,  because  the  broader  aspect 
of  their  profession  is  one  they  have  had  little  time  or  oppor- 
tunity to  study.  They  are  the  nearest  approach  to  experts 
we  possess,  and  it  is  fortunate  that  they  exist.  They  ac- 
complish wonders  in  simply  making  a  cumbersome  system 
work.  Our  government  would  go  to  pieces  if  the  guiding 
hand  of  the  professional  politician  were  removed  from  it. 
But  his  deficiencies  are  well  known.  Until  he,  or  his  suc- 
cessor has  been  put  in  possession  of  the  truths  which  study 
of  past  experience  reveals,  his  hold  upon  the  present  will 
only  lead  to  further  groping.  A  wider  horizon,  on  the  part 
of  those  who  are  in  a  position  to  put  their  views  into  prac- 
tical effect,  seems  to  me  the  great  need  of  American  politics. 
It  is  because  I  have  in  mind  this  specialized  class,  rather 
than  the  average  citizen  who,  in  the  intervals  of  a  busy  life, 
aspires  to  take  an  intelligent  interest  in  politics,  that  I 
have  picked  out  a  small  topic,  and  treated  it  in  a  manner 
calculated  to  enhance,  rather  than  to  veil,  its  essential  tech- 
nicality. In  particular,  I  have  tried  to  include  every  relevant 
constitutional  provision,  with  precise  references  to  each,  for 
the  following  perfectly  concrete  purpose.  We  are  likely  to 
have  in  New  York,  for  instance,  in  a  few  years,  one  of  our 
periodic  Constitutional  Conventions.  The  New  York  pro- 
vision affecting  the  formation  of  counties,  say,  is  found  to 
be  decidedly  different  from  the  prevailing  treatment.  Will 
it  not  be  of  assistance  to  the  particular  committee  within 
whose  province  this  provision  falls,  to  be  able  to  see  how 
this  question  has  been  handled  in  all  the  other  States,  so 
that,  on  the  basis  of  the  wide  range  of  suggestions  thus 
obtained,  they  may  decide  what  in  their  judgment  is  the 
wisest  treatment?  When  they  have  decided  what  policy 
they  wish  to  pursue,  will  it  not  be  of  further  assistance  to 
have  at  hand  precise  references  to  provisions  in  other  States, 


8  PREFACE  [400 

so  that  the  most  accurate  wording  may  be  followed  ?  This, 
in  general,  but  with  a  much  more  limited  survey  of  past 
instruments,  is  the  way  in  which  most  Constitutional  pro- 
visions have  actually  been  drafted.  I  seek  only  to  perfect 
an  established  procedure.  On  the  general  principle  that  out 
of  a  multiplicity  of  suggestions  one  or  two  turn  out  to  be 
good,  I  have,  it  is  true,  included  a  few  constructive  ideas  of 
my  own.  I  have  not  much  belief,  however,  in  the  value 
of  irresponsible  advice,  and  know  no  reason  why  my  own 
should  be  considered  better  than  other  people's.  The  man 
in  the  Convention  or  the  Legislature — not  the  man  in  the 
study  or  the  street — is  the  man  who,  by  the  exercise  of  his 
own  judgment,  ultimately  decides  all  except  the  broadest 
principles.  Our  best  service  to  him,  and,  through  him,  to 
the  community  at  large,  is  to  put  him  in  a  position  to  de- 
cide intelligently. 

If  my  work  has  been  properly  done,  then,  I  foresee  for 
it,  not  a  wide  appeal,  but  an  immediate  practical  usefulness. 

I  have  said  that  it  is  a  small  topic  which  I  have  chosen 
to  treat  in  this  detailed  manner.  It  is  needless  to  say  that, 
feeling  the  value  of  this  general  method  as  I  do,  I  should 
like  to  see  it  extended  to  other  elements  of  the  political 
structure.  This  takes  time,  however.  Meanwhile,  the  pres- 
ent instalment,  although  small  in  proportion  to  what  might 
be  said,  involves  questions  of  fundamental  importance — - 
more  fundamental  than  even  the  suffrage,  which  is  itself 
defined  in  terms  of  political  subdivisions — and  more  in  need 
of  our  consideration  to-day,  because,  as  the  following  pages 
will  reveal,  much  farther  from  being  answered.  The  con- 
tinuance of  amicable  relations  between  country  and  town; 
a  fair  representation  of  the  voters  in  Legislature  and  Con- 
vention; the  protection  of  minorities  against  intemperate 
majority  rule;  a  simplified  legal  and  party  system — all  these 
are  certainly  important  ends  of  political  endeavor,  and  will 


40 1  ]  PREFACE  9 

become  pressing  ones  the  moment  public  opinion  chooses 
so  to  make  them.  All  depend  for  their  attainment  in  large 
degree  upon  the  dry  mechanical  details  of  State  subdivision. 

It  would  be  impossible  for  me  to  express,  as  I  should  like 
to,  my  acknowledgments  to  all  who  have  helped  me,  and  yet 
to  emphasize,  as  I  must,  three  especial  obligations.  Coming 
to  my  graduate  studies  in  this  university  with  an,  I  fear,  not 
too  malleable  mind — making  no  secret  of  convictions,  in  re- 
gard to  certain  features  of  our  political  life,  to  which  I 
attach  perhaps  exaggerated  importance — I  have  experienced 
at  all  times  ready  helpfulness  and  patient  consideration.  In 
particular,  however,  I  am  indebted  to  three  gentlemen. 
First,  and  foremost,  Professor  Frank  J.  Goodnow  has 
taught  me  that  the  problem  of  municipal  government — that 
political  problem  which,  to  the  average  city-dweller,  comes 
most  nearly  home — cannot  be  approached  as  a  topic  by 
itself,  but  only  as  a  part  of  the  problem  of  State  govern- 
ment in  general.  Incidentally,  Professor  Goodnow  has 
taught  me  virtually  all  I  know  in  regard  to  this  broader 
topic.  It  was  Professor  William  A.  Dunning,  again,  who 
first  turned  my  attention  to  the  importance  of  State  Con- 
stitutions, and  to  the  comparative  neglect  of  this  field  of 
study.  My  acknowledgments  are  due  to  him  not  only  for 
this,  but  for  the  kindly  sympathy  and  encouragement  with 
which  he  has  lightened  what  has  been  at  times  a  tedious 
task.  Finally,  I  owe  especial  thanks  to  Professor  Charles 
A.  Beard  for  invaluable  suggestions  of  detail,  and  for 
assistance  in  an  unusually  laborious  task  of  proof-reading. 

A.  Z.  R. 

COLUMBIA  UNIVERSITY,  4  APRIL,  1911. 


TABLE  OF  CONTENTS 


CHAPTER  I 

POLITICAL  SUBDIVISIONS  DURING  THE  COLONIAL  PERIOD  .  17 

CHAPTER  II 

PROVISIONS  INCIDENTALLY  AFFECTING  LOCAL  BOUNDARIES  -  20 

1.  Rules  affecting  the  formation  of  municipal  corporations  ....  24 

(a)  Extraordinary  Legislative  majority 25 

(b)  Single  bills.     Deferred  action ...  25 

(c)  General  legislation 26 

(d)  Simple  Referendum 31 

(e)  Freedom  from  Legislative  control 31 

2.  Other  rules  incidentally  affecting  local  boundaries 32 

(a)  Extension  of  the  single  bill  rule  of  1838  ........  32 

(b)  Extension  of  the  deferred  action  rule  of  1842 35 

(c)  Extension  of  the  general  bill  rule  of  1851 36 

(d)  Extension  of  the  interpreting  rule  of  1873 39 

(e)  Extension  of  the  Referendum  rule  of  1889 41 

(f)  The  Tennessee  authorization  of  judicial  control 44 

3.  Summary 44 

CHAPTER  III 

THE  COUNTY      47 

1.  Creation  of  new  counties 48 

(r)  Direct  limitations 48 

(b)  Indirect  limitations 54 

(c)  Prohibition 63 

2.  Changes  of  boundary  between  existing  counties 63 

(a)  Direct  limitations .    .  65 

(b)  Indirect  limitations    ....       66 

(c)  Prohibition 69 

3.  Abolition  of  counties 69 

4.  Summary 71 

403]  ii 


12  TABLE  OF  CONTENTS  [404 

CHAPTER  IV 

URBAN  DISTRICTS 

I.  The  urban  district  as  a  whole 73 

1.  Direct  limitations 77 

2.  Extraordinary  legislative  majority.     Deferred  action    .    .  77 

3.  General  legislation 77 

4.  Simple  Referendum  upon  organization 83 

5.  Freedom  from  Legislative  control  over  charter  formation.  84 

6.  Local  Initiative-Referenda  provisions 87 

II.  Urban  subdivisions 89 

III.  Summary gi 

CHAPTER  V 

DISTRICTS  FOR  GENERAL  OR  JUDICIAL  PURPOSES,  OTHER  THAN 
COUNTY  AND  URBAN 

I.  Minor  divisions 94 

II.  Judicial  substitutes  for  the  county 101 

1.  Territory  outside  the  county  system 101 

2.  Augmented  counties 102 

3.  Divided  counties 103 

4.  Differentiated  districts,  coordinate  with  the  county  ...  103 

III.  Major  judicial  districts 105 

1.  Highest  Court  districts 105 

2.  Circuits  and  their  equivalents 107 

3.  Intermediate  districts  and  their  offshoots 118 

4.  Coordinate  districts  and  their  offshoots 120 

IV.  Major  divisions  for  general  purposes 121 

V.  Summary 122 

CHAPTER  VI 
DISTRICTS  FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 

1.  Militia  districts 124 

2.  Voting  districts 126 

3.  Educational  districts ,  129 

4.  Internal  improvement  districts 131 

5.  Minor  administrative  districts 133 

6.  Conservation  districts 133 

7.  Police  districts 133 

8.  Summary 134 


405]  TABLE  OF  CONTENTS  ^ 

CHAPTER  VII 
DISTRICTS  OF  REPRESENTATION  IN  THE  LOWER  HOUSE  .    ;    137 

I.  Early  systems  of  representation 138 

II.  Obligatory  periodic  reapportionment 145 

1.  The  permanent  district . 152 

2.  Unions  of  administrative  districts 156 

3.  Obligatory  subdivisions  of  administrative  districts,  without 

unions 163 

4.  Obligatory  single  member  districts,  following  New  York.  172 

5.  Permissive  single  member  districts,  with  the  county  check.  178 

6.  Unrestricted  formation  of  districts 179 

III.  Discretionary  reapportionment 180 

IV.  Summary 185 

CHAPTER  VIII 
DISTRICTS  OF  REPRESENTATION  IN  THE  UPPER  HOUSE  .   .    191 

I.  Early  treatments  of  the  upper  house 193 

II.  Periodic  reapportionment 199 

1 .  The  permanent  district 203 

2.  Simple  unions 203 

3.  Obligatory  single  member  districts,  without  divisions  .   .    205 

4.  Obligatory    single    member    districts,    with    occasional 

divisions 208 

5.  Obligatory  single  member  districts,  with  divisions  of  large 

counties 209 

6.  Free  formation  of  single  member  districts 211 

7.  Permissive  single  member  districts,  with  the  county  check.  212 

8.  Unrestricted  formation  of  districts 213 

III.  Summary 213 

CHAPTER  IX 

MISCELLANEOUS  DISTRICTS  OF  REPRESENTATION 

1.  Congressional  Districts 218 

2.  Judicial  districts  of  representation 222 

3.  Gubernatorial  districts  of  representation 226 

4.  Administrative  districts  of  representation 226 

5.  Districts  of  representation  within  counties    ....       229 

6.  Districts  of  representation  within  cities 230 

7.  Summary 230 


14  TABLE  OF  CONTENTS 


CHAPTER  X 
CONCLUSION  .........................    23S 

BIBLIOGRAPHICAL  NOTE  ..........   ...........    242 


ABBREVIATIONS 

For  convenience  of  reference,  the  Constitutions  have  been  referred 
to  by  the  year  under  which  they  appear  in  Thorpe's  collection,  except 
when,  as  with  the  first  instruments  of  West  Virginia  and  Nebraska, 
Thorpe  uses  a  double  date.  For  these,  and  for  all  amendments,  the 
date  of  final  ratification  has  been  used.  For  the  complete  Constitutions, 
Thorpe's  numbering  has  usually  been  followed;  "Articles",  however, 
to  which  sections  are  subordinate,  are  consistently  expressed  in  'Roman 
numerals;  e.  g.  Kans.  Const.  1859,  \i,  26;  and  in  late,  serially  numbered, 
instruments,  the  intermediate  "Articles  "  or  "  Titles  "  are  omitted ;  e.  g. 
La.  Const.  1868,  93  (not  1868,  vi,  93).  For  the  amendments,  both  the 
year  and  Thorpe's  numbers  are  used;  these  sometimes  denote  the 
serial  number  of  the  amendment  as  a  whole;  e.  g.  Md.  Am.  1807,  x; 
sometimes  the  section  of  the  amendment;  e.  g.  Md.  Am.  1837,  10; 
sometimes  the  number  of  the  provision  which  is  amended;  e.  g.  Pa. 
Am.  1857,  i,  4.  References  to  provisions  not  in  Thorpe,  or  not  clearly 
expressed  in  Thorpe,  have  an  asterisk  prefixed;  e.  g.  Md.  *  Am.  1799, 
vi—Cal.  *  Const.  1879,  xm,  9;  Am.  1884— Fla.  Const.  1885,  viii,  4; 
*  Am.  1900.  See  Bibliographical  Note  at  close  of  paper. 

407]  is 


CHAPTER  I 
POLITICAL  SUBDIVISIONS  DURING  THE  COLONIAL  PERIOD 


FOR  purposes  of  administration,  locally  limited  jurisdic- 
tions have  always  been  found  necessary.  The  two  most 
important  local  divisions,  established  during  the  Colonial 
period,  were  the  urban  district  and  the  county.  Urban 
settlements  already  possessing,  or  ripe  for  the  acquisition  of, 
special  privileges,  appeared,  before  the  close  of  the  Colonial 
period,  under  the  names  of  towns  or  cities,  in  all  the  Colo- 
nies. The  more  artificial  county,  serving  primarily  the 
general  convenience  of  the  Colony,  was  also  early  instituted 
everywhere,  except  in  Georgia,  and  justified  its  existence 
except  in  South  Carolina,  where  it  seems  to  have  been  in  a 
precarious  position.  To  this  extent,  the  system  of  local  di- 
visions was  fairly  uniform  when  the  Revolution  occurred, 
the  chief  distinction  between  Colony  and  Colony  being  the 
greater  or  less  development  of  the  urban  organization,  and 
the  greater  or  less  extent  of  unsettled  lands,  to  which  even 
the  county  organization  had  not  yet  been  extended. 

The  existence  of  State  territory,  lying  outside  of  county 
lines,  was  of  little  importance,  being  certain  to  disappear 
with  the  movement  of  population  inland.  The  existence 
of  county  territory,  however,  lying  outside  of  urban  lines 
is  a  permanent  phenomenon,  so  long  as  the  movement  into 
urban  centers  endures.  A  smaller  division  than  the  county 
was  needed  for  the  administration  of  this  rural  territory, 
and  in  the  manner  in  which  this  need  was  satisfied  the  great- 
est disparity  between  the  colonies  appeared.  Broadly 
409]  17 


!g  TERRITORIAL  BASIS  OF  GOVERNMENT  [410 

speaking,  it  may  be  said  that,  in  New  England,  the  move- 
ment was  from  the  numerous  and  vigorous  towns  outward, 
outlying  rural  territory  being  brought  within  the  town  juris- 
diction, so  that  the  tendency  was  towards  a  uniform  divi- 
sion of  the  Colony  into  small  areas,  containing  both  urban 
and  rural  territory,  out  of  which  the  somewhat  later  county 
was  aggregated ;  while  elsewhere  the  tendency  was  for  dis- 
tinctively rural  areas  to  appear  alongside  the  few  urban 
settlements.  Towns  or  townships  alone,  in  New  England 
— parishes,  hundreds,  boroughs,  beats  or  districts,  elsewhere, 
with  or  without  towns  and  cities  as  well — was  the  general 
rule,  subject  to  many  exceptions. 

A  detailed  account  of  the  various  systems  of  representa- 
tion in  the  Colonial  Assemblies  would  be  out  of  place  in  this 
introductory  sketch,  even  if  the  writer  had  made  of  these, 
as  he  has  not,  a  special  study.  A  few  simple  generalizations, 
however,  may  profitably  be  kept  in  mind,  while  studying 
the  later  development.  One  is  that  our  modern  notion  of 
a  periodically  varying  district  had  not  even  begun  to  de- 
velop; fixed  local  districts  were  everywhere  the  basis  of 
representation.  In  New  England  the  towns  virtually 
monopolized  representative  privileges,  thus  establishing  a 
sectional  tradition  which  is  almost  unimpaired  to-day. 
Elsewhere,  a  favorite  plan,  just  before  the  Revolution,  was 
to  accord  representation  to  all  counties,  but  also  to  special 
towns,  cities  or  boroughs.  This  was  the  English  principle, 
and  produced,  in  several  Colonies,  an  unsymmetrical,  but 
historically  and  practically  justifiable,  system  of  representa- 
tive districts,  which  we  shall  see  carried  over  into  several 
States,  before  it  gave  way  to  a  uniform  county  system. 

One  other  important  feature  of  the  Colonial  system 
should  be  noted.  Control  over  'local  divisions  was  almost 
entirely  in  the  hands  of  the  active  government.  The  prin- 
cipal, if  not  the  only  exceptions,  were  some  of  the  urban  dis- 


4l I ]  THE  COLONIAL  PERIOD  IOy 

tricts,  which  rested  upon  Royal  or  Proprietary  Charter. 
This  protection  having  been  swept  away  by  the  Revolution, 
complete  power  to  change  existing  lines,  except  in  so  far 
as  express  restrictions  were  imposed  by  the  Constitutions, 
was  naturally  inherited  by  the  State  Legislatures.  There 
seems  to  have  been  a  little  uncertainty  in  regard  to  this 
point  for  a  time.  In  a  few  States  it  was  thought  necessary 
expressly  to  vest  control  of  such  matters  in  the  Legisla- 
tures.1 Usually,  however,  this  has  not  been  done.  The 
competency  of  the  Legislature,  in  the  absence  of  restrictions, 
to  alter  district  lines  at  will,  has  never,  so  far  as  the  writer 
is  aware,  been  successfully  disputed.  Doubtless  even  the 
three  Delaware  counties  of  Newcastle,  Kent  and  Sussex 
owe  their  permanence,  in  a  legal  sense,  to  the  Legislative 
policy  of  this  State,  and  not  to  the  fact  that  the  State  itself 
was  formed  by  the  union  of  these  more  ancient  counties. 

The  principal  inheritance  of  the  States  from  the  Colo- 
nies, then,  in  this  matter  of  political  subdivisions,  was  the 
existence  of  the  county,  as  the  prime  unit  of  State  admin- 
istration; the  use  of  towns,  as  units  of  representation,  in 
New  England,  and  of  both  counties  and  urban  districts, 
commonly  elsewhere;  and  the  general  principle  that  the 
Legislature,  except  as  restricted,  had  full  control. 

1  Power  to  "  constitute  -towns,  boroughs,  cities  and  counties,"  in 
Pennsylvania  (Const.  1776,  9 — until  1790)  and  Vermont  (Const. 
1777,  ii,  8;  1786,  ii,  9;  1793,  ii,  9). 

Power  to  "  divide  the  State  into  further  and  other  counties,"  in  New 
York  (Const.  1777,  12— until  1821). 

Power  to  "alter  the  boundaries  of  the  present  counties,  and  to  lay- 
off new  ones,  as  well  out  of  the  counties  already  laid  off  as  out  of 
the  other  territory  belonging  to  the  State,"  in  Georgia  (Const.  1789,. 
i,  17;  1798,  i,  23 — until  the  War). 


CHAPTER  II 
RULES  INCIDENTALLY  AFFECTING  LOCAL  BOUNDARIES 

BEFORE  we  discuss  those  Constitutional  provisions  which 
apply  to  the  formation  of  the  various  types  of  districts, 
separately,  something  must  be  said  as  to  those  provisions, 
in  regard  to  corporations,  special  bills,  local  Referenda,  etc., 
which  may  affect  several  or  all  types  together.  In  every 
State  of  the  Union  except  Massachusetts,  Connecticut,  Ver- 
mont, New  Hampshire,  North  Carolina  and  Idaho,  pro- 
visions of  this  sort  to-day  exist,  in  most  cases  with  an  ap- 
plication far  broader  than  the  mere  bounding  of  local  divi- 
sions. The  idea  of  generality,  which  the  framers  of  Consti- 
tutions, even  to-day,  more  or  less  consciously  pursue,  has 
resulted  in  the  grouping  together  of  incongruous  objects  of 
legislation,  on  the  strength  of  some  one  element  or  attribute 
which  they  have  in  common. 

The  corporate  characteristics  possessed  by  city  or  town 
governments  from  early  times  and,  more  recently,  by  the 
inhabitants  both  of  urban  and  of  other  districts,  have  been 
one  fertile  source  of  this  confusion.  In  itself,  the  possession 
of  corporate  powers  by  persons  inhabiting  a  locality  would 
seem  to  have  no  necessary  connection  with  the  definition  of 
the  locality  itself.  The  venerable  custom,  however,  of  in- 
cluding in  city  charters  a  description  of  corporate  boun- 
daries, makes  provisions  regarding  corporations  in  general 
— first  appearing  in  New  York  in  1821 — apply  to  the  for- 
mation at  least  of  this  particular  type  of  political  division, 
in  this  particular  way — makes,  indeed,  the  question  of  how 
20  [412 


413]  INCIDENTAL  PROVISIONS  21 

far  such  provisions  apply  to  other  divisions  which  are,  or 
may  become,  "  municipal  corporations  ",  far  too  abstruse 
to  be  settled  except  by  judicial  construction.1  In  a  few 
States  this  confusion  does  not  exist.  Louisiana,  first,  in 
1845,  specially  excepted  corporations  "  for  political  or  muni- 
cipal purposes"  from  the  general  corporation  provision; 
and  although  this  system  of  imposing  restrictions  upon  the 
creation  of  only  non-municipal  corporations  was  abandoned 
in  this  State  after  the  War,  it  survives  in  four  Southern 
States,  in  Maine,  and  in  three  Far  Western.2  In  two  other 
Southern,  and  four  other  Far  Western  States,  entirely 
separate  rules  for  municipal  and  for  non-municipal  cor- 
porations are  now  provided.3  In  Massachusetts,  Connec- 

1  Counties  are  expressly  stated  to  be  bodies  corporate  only  in  Mich- 
igan (Const.  1850,  x,  i;  *  1908,  viii,  i),  Georgia  (Const.  1877,  xi,  i), 
South  Carolina  (Const.  1895,  vii,  9),  Oklahoma  (Const.  1907,  xvii,  i), 
and  Arizona  (*  Const.  1911,  xii,  i),  Townships,  in  Michigan  (Const. 
1850,  xi,  2;  *  1908,  viii,  16),  North  Carolina  (Const.  1868,  vii,  4;  1876, 
vii,  4),  and  South  Carolina  (Const.  1895,  vii,  n).  This  last  provision 
applies  only  to  townships  established  prior  to  1895. 

*  Municipal  corporations  excepted  from  the  general  rule  in : 

Louisiana  (Const.  1845,  123)   until  1852. 

Iowa   (Const.  1846,  viii,  2)   until  1857. 

Minnesota  (Const.  1857,  x,  2)  until  1881. 

North  Carolina  (Const.  1868,  viii,  i;  1876,  viii,  i). 

Maine   (Am.   1876,  iv,  14). 

Colorado   (Const.  1876,  xv,  i). 

Montana  (Const.  1889,  xv,  2). 

Idaho   (Const.  1889,  xi,  2). 
Rule  applicable  only  to  private  corporations,  in: 

Texas  (Const.  1845,  vii,  30,  31— until  the  War;  Const  1876,  xii,  i). 

West  Virginia  (Const.  1862,  xi,  5)  until  1872. 

Georgia  (Const.  1868,  iii,  5,  par.  5;  1877,  iii,  7,  par.  18. 

Virginia   (Const.  1902,  63,  par.  18. 

'Florida  (Const.  1885,  iii,  25;  viii,  8). 

North  Dakota   (Const.  1889,  130,  131). 

South  Carolina  (Const.  1895,  viii,  i;  ix,  i). 

Oregon   (Am.  1906,  xi,  2). 


22  TERRITORIAL  BASIS  OF  GOVERNMENT 

ticut,  Vermont  and  New  Hampshire  no  rules  governing 
the  formation  of  corporations  of  any  sort  have  yet  ap- 
peared. In  the  remaining  thirty  States,  however,  includ- 
ing the  important  Middle  States  and  almost  the  entire  Miss- 
issippi Valley,  a  general  rule  applicable  to  all  corpora- 
tions seems  to  be  in  force,1  supplemented  in  some  cases  by 
additional  rules  for  municipal  corporations  as  such. 

Oklahoma  (Const.  1907,  ix,  38;  xviii,  i). 
Arizona  (*  Const.  1911,  xiii,  xiv). 

Florida  (Const.  1868,  v,  22)  and  South  Carolina  (Const.  1868,  xii, 
i)  started  with  general  provisions. 

1  The  applicability  of  the  general  rule  to  municipalities  is  not  always 
perfectly  clear  from  the  text.     Idaho  Const.  1889,  iii,  19,  is  a  prohibi- 
tion of  local  or  special  legislation  "  creating  any  corporation " ;  this, 
however,  would  seem  to  foe  overridden  by  the  clause  above  cited. 

Another  question  which  presents  considerable  difficulties  is  whether 
the  clause  "  except  for  municipal  purposes "  qualifies  the  whole,  or 
only  a  part,  of  the  general  provision.  If  the  language  of  the  successive 
provisions  be  examined  in  chronological  order,  however,  it  becomes 
fairly  clear  that  in  the  following  variants  of  the  original  New  York 
provision,  "  Corporations  may  be  formed  under  general  laws ;  but 
shall  not  be  created  by  special  act,  except  for  municipal  purposes/' 
the  exception  does  not  refer  to  the  first  clause: 

New  York  (Const.  1846,  viii,  i;  1894,  viii,  i). 

Illinois  (Const.  1848,  x,  i)   followed  by  Wisconsin,  to-day. 

California  (Const.  1849,  iv,  31)  followed  by  Oregon,  to-day. 

Nevada  (Const.  1864,  viii,  i)  to-day. 

Maryland   (Const.  1867,  iii,  48)  to-day. 

2  Such  supplementary  rules  appear  in : 
Missouri  (Const.  1865,  viii,  4,  5)  until  1875. 
South  Dakota  (Const.  1889,  xvii,  i;  x,  i). 
Wyoming  (Const.  1889,  x,  i;  xiii,  i). 
Washington  (Const.  1889,  ii,  28,  par.  6;  xi,  10). 
Oregon  (Am.  1906,  xi,  2). 

New  Mexico  (*  Const.  1911,  xi,  13;  x). 

The  imposition  of  supplementary  restrictions  upon  private  corpora- 
tions has  been  common,  and  is  frequently  phrased  as  an  additional 
general  rule  from  which  municipalities  are  excepted. 

To  be  distinguished  from  the  preceding,  but  evincing  the  same  ten- 
dency, characteristic  of  the  South  and  Far  West,  to  distinguish,  at 


415]  INCIDENTAL  PROVISIONS  23 

A  quarter  of  a  century  after  the  launching  of  this  cor- 
poration movement,  and  just  at  the  moment  when  the  ad- 
visability began  to  be  felt  of  discriminating  between  muni- 
cipal and  non-municipal  corporations,  New  York  again 
gave  the  initial  impulse  to  a  Constitutional  generalization 
of  a  still  broader  character.  The  power  possessed  by  the 
Legislature  to  create  corporations  is  only  one  instance  of 
what  are  best  termed  its  administrative  powers — its  power, 
that  is  to  say,  to  enact  measures  applicable  to  particular  per- 
sons or  to  particular  localities,  as  distinguished  from  meas- 
ures of  general  application.  Such  a  power  is,  of  course, 
peculiarly  liable  to  abuse.  Hence  the  early  introduction 
into  Constitutions  of  rules  affecting  its  exercise  in  enumer- 
ated subjects.  But  if  special  safeguards  were  needed  as 
regards  the  creation  of  corporations,  the  granting  of  di- 
vorces, the  changing  of  a  person's  name,  was  it  not  logical 
to  provide  a  general  rule  of  procedure  for  all  legislation 
of  a  private  or  local  character?  We  need  not  here  enquire 
whether  this  general  treatment  of  subjects,  widely  distinct, 
each  from  each,  was  wise.  We  need  only  point  out  that, 
to  a  generation  already  compelled,  from  mere  motives  of 
convenience,  to  print  private  and  local  bills  apart  from 
general  bills,  in  their  session  laws,  or  to  omit  them  alto- 
gether from  the  periodical  "  Revised  Statutes  ",  the  tempta- 
tion to  group  all  such  legislation  under  a  single  Constitu- 
tional provision  was  well  nigh  irresistible.  The  movement 
did  not  spread  before  the  War  to  more  than  four  (Western) 
States,  but  to-day  thirty-seven  States  in  all 1  provide  more 

least  formally,  between  municipal  and  other  corporations,  is  the  ex- 
press application,  to  municipalities,  of  a  rule  which  would  appear 
in  any  case  to  apply  to  them.  So  California  (Const.  1879,  x">  IJ  x*> 
6)  and  Utah  (Const.  1895,  xii,  i;  xi,  5).  So  also  South  Dakota  and 
Wyoming,  in  addition  to  the  supplementary  provisions  already  cited. 
1  The  missing  States  are  Tennessee,  and  the  following  ten,  all  on 


24  TERRITORIAL  BASIS  OF  GOVERNMENT  [416 

or  less  effective  rules  for  all  (so-called)  "  special  "  legis- 
lation. 1 

I.    RULES   AFFECTING   THE    FORMATION    OF    MUNICIPAL 
CORPORATIONS 

Turning  now  to  the  content  of  these  provisions,  which, 
in  appearance  at  least,  affect  legislative  control  over  local 
boundaries,  and  leaving,  as  entirely  outside  the  scope  of  this 
study,  the  question  of  how  far  the  Courts  have  as  a  matter 
of  fact  construed  them  to  be  applicable,  we  find,  with  many 
variations,  five  types  of  provisions  affecting  municipal  cor- 
porations. The  first  and  oldest  type  require  more  than  an 
ordinary  legislative  majority  for  action.  This  was  fol- 
lowed by  a  class  of  provisions  which,  while  not  disturbing 
the  ultimate  control  of  the  ordinary  legislative  majority, 
imposed  certain  safeguards  looking  towards  delay,  publicity 
and  careful  consideration.  Then  came  an  effort  to  mini- 
mize, or  prevent,  legislative  discrimination,  by  authorizing, 
or  requiring,  the  passage  only  of  general  laws  upon  the 
subject.  Much  more  recently,  a  local  Referendum  has  been 
imposed  upon  legislative  action;  and  this,  finally,  has  de- 
veloped in  one  State  into  an  absolute  removal  of  the  sub- 
ject from  legislative  control. 

the  borders  of  the  Union:  The  New  England  States,  south  of  Maine; 
Delaware,  North  Carolina,  Ohio,  Washington  and  Idaho. 

North  Carolina  is  peculiar  in  possessing,  since  1868,  a  rule  applicable 
to  all  private  legislation  only. 

1  The  terms  "  local "  and  "  special "  are  usually  coupled,  as  distin- 
guished from  "general"  legislation.  In  New  York  and  Wisconsin, 
however,  the  terms  "  private  "  and  "  local "  are  used ;  in  Kansas,  Mary- 
land (once),  Arkansas  (once),  Minnesota  (once),  New  Mexico  (once), 
and  in  Missouri,  1865-1875,  only  "  special " ;  in  Maine,  South  Dakota, 
and  Utah,  "private"  and  "special";  in  New  Jersey,  Virginia,  and 
Alabama,  "  private,"  "  local,"  and  "  special " ;  and  in  the  last-named 
State  the  terms  are  defined.  These  variations  in  phraseology  seem 
to  have  no  force. 


417]  MUNICIPAL  CORPORATIONS  2$ 

(a)  Extraordinary  Legislative  Majority 
The  original  New  York  rule  was  to  require  the  assent 
of  two-thirds  of  the  members  elected  to  each  house,  to  any 
bill  "  creating,  continuing,  altering,  or  renewing  any  body 
politic  or  corporate ".  Delaware  and  Michigan,  in  the 
early  30*8,  followed  with  similar  but  weaker  rules,  requiring 
only  an  ordinary  two-thirds  majority,  and  only  for  the 
original  act  of  incorporation.  By  1850  the  provision  was 
dropped  in  the  two  Northern  States.  In  Delaware,  how- 
ever, it  seems  to  be  firmly  established,  having  been  reenacted 
in  1897  in  the  form,  "  No  general  incorporation  law  nor 
any  special  act  of  incorporation  shall  be  enacted  without 
the  consent  of  two-thirds  majority  of  all  the  members 
elected  to  each  house  ".  In  Iowa,  also,  since  1857,  a  curious 
survival  of  the  idea  can  be  traced  in  a  requirement  of  a  two- 
thirds  majority  for  amending  or  repealing  the  (general) 
incorporation  laws.  With  these  exceptions,  the  require- 
ment of  an  extraordinary  majority  has  found  no  favor.1 

(b)  Single  bills.    Deferred  action 

Pennsylvania,  in  1838,  followed  many  years  later  by  Ala- 
bama, took  the  first  step  towards  preventing  "  omnibus " 
legislation  and  "  grab  bills  ",  by  providing  that,  "  No  law 
hereafter  enacted  shall  create,  renew,  or  extend  the  charter 
of  more  than  one  corporation."  This  particular  provision 
is  now  extinct,  having  succumbed  to  the  third  phase  of  the 
corporation  movement,  with  which  it  is  wholly  inconsistent. 
Rhode  Island,  however,  in  1842,  provided  that  bills  creating 
corporations  should  be  continued  until  after  a  fresh  elec- 

1  In  Delaware,  until   1897,  corporations  could  not  be  created  for  a 
longer  term  than  twenty  years. 
N.  Y.  Const.  1821,  vii,  9  (until  1846). 
Del.  Const  1831,  ii,  17;  1897,  ix,  i. 
Mich.  Const.  1835,  xii,  2  (until  1850). 
la.  Const.  1857,  viii,  12. 


26  TERRITORIAL  BASIS  OF  GOVERNMENT  [418 

tion  of  the  Legislature,  notice  being  given  of  their  pendency ; 
and  although,  fifty  years  later,  this  provision  was  abolished 
as  a  whole,  a  fragment  remains  in  the  requirement  that 
"  no  corporation  shall  be  created  with  the  power  to  exercise 
the  right  of  eminent  domain  .  .  .  except  by  special  act  of 
the  general  assembly,  upon  a  petition  for  the  same,  the 
pendency  whereof  shall  be  notified  as  may  be  required  by 
law."  Michigan,  also,  from  1850  until  1908,  required  that 
notice  should  be  given  for  changing  the  charter  of  any  cor- 
poration.1 

With  the  preceding  may  be  classed  also  the  rule,  appear- 
ing in  the  last  Florida  instrument  only,  that  when  any  mu- 
nicipality is  abolished,  provision  shall  be  made  for  the  pay- 
ment of  its  creditors.2 

(c)  General  Legislation 

The  most  widely  diffused  rule  for  the  treatment  of  purely 
private  corporations  has  been  absolute  prohibition  upon 
their  creation  by  special  act.  We  have  seen  that  in  Louisi- 
ana, where  this  idea,  in  1845,  ^rst  received  constitutional 
expression,  municipal  corporations  were  excepted  from  the 
operation  of  this  provision;  and  that  both  here,  and  in 
several  later  States,  no  substitute  was  provided.  New 
York,  in  1846,  however,  made  a  distinction  between  an 
authorization  to  form  corporations  by  general  law  (to 
which  no  exception  was  made),  and  a  requirement,  more 
or  less  absolute,  that  they  should  be  formed  only  in  this 
way  (from  which  municipalities  were  excepted).  The  first 
half  of  this  provision,  with  or  without  the  second,  and 
latterly  usually  strengthened  by  the  requirement  that  such 

1  Pa.  Const.  1838,  i,  25  (until  1873). 

Ala.  Const.  1875,  xiii,  10  (until  1901). 

R.  I.  Const.  1842,  iv,  17;  Am.  1892,  ix. 

Mich.  Const.  1850,  xv,  16  (until  1908). 
8  Fla.  Const.  1885,  viii,  8. 


419]  MUNICIPAL  CORPORATIONS  27 

general  laws  shall  be  enacted,  survives,  to-day,  in  eight 
scattered  States;  its  only  importance  is  that  it  protects  gen- 
eral laws  incorporating  municipalities  in  these  States  from 
possible  attack  on  the  ground  that  they  delegate  Legisla- 
tive power.1 

Much  more  commonly,  however — in  twenty-five  States, 
in  all,  including,  however,  only  two  on  the  Atlantic  sea- 
board— the  preceding  distinction  has  not  been  preserved,  and 
special  legislation  creating  corporations  of  any  sort  has 
come  to  be  forbidden.  Here,  again,  a  distinction  must  be 
made  between  what  may  be  called  the  Indiana  rule,  under 
which  special  creation,  only,  is  forbidden,  and  the  more 
stringent  Ohio  rule,  which  forbids  also  special  change  of 
charters.  The  two  rules  are  of  equal  antiquity,  having  made 
their  first  appearance  in  these  two  States  in  1851,  and  each 

1  References : 

N.  Y.  Const.  1846,  viii,  i ;  1894,  viii,  i. 

Md.  Const.  1851,  iii,  47 ;  1864,  iii,  51 ;  1867,  iii,  48. 

Nev.  Const.  1864,  viii,  I. 

S.  C.  Const.  1868,  xii,  i ;  1895,  viii,  i. 

N.  D.  Const.  1889,  130,  131. 

Wyom.  Const.  1889,  x,  i ;  xiii,  i. 

R.  I.  Am.  1892,  ix,  i  (not  applying  to  corporations  with  the  power 
to  exercise  the  right  of  eminent  domain). 

*  N.  Mex.  Const.  1911,  xi,  13. 

Similar  provisions  existed  for  a  time  in: 

111.  Const.  1848,  x,  i   (until  1870). 

Wise.  Const.  1848,  xi,  i    (until  1871). 

Cal.  Const.  1849,  iv,  31    (until  1879). 

Mich.  Const.  1850,  xv,  i  (until  1008). 

Or.  Const.  1857,  xi,  2   (until  1906). 

Ala.  Const.  1867,  xiii,  i;  1875,  xiii,  i  (until  1901). 

Fla.  Const.  1868,  v,  22  (until  1885). 

The  obligation  to  pass  such  general  laws  appears  in  Florida,  North 
Dakota,  Wyoming,  New  Mexico,  and  (since  1895)  South  Carolina.  It 
is  quite  clear  in  North  Dakota  that  this  is  not  equivalent  to  a  pro- 
hibition upon  special  legislation. 

For  the  difficulty,  in  some  instances,  of  determining  whether  the  pro- 
vision in  question  falls  within  the  excepting  clause,  vide  p.  22,  note  I, 
supra. 


28  TERRITORIAL  BASIS  OF  GOVERNMENT  [420 

having  been  taken  up  by  one  other  State  before  the  War— 
the  Indiana  rule  by  Iowa  (in  addition  to  the  two-thirds 
provision,  already  noted)  and  the  Ohio  rule  by  Kansas. 
Since  the  War,  the  Indiana  rule  has  spread  to  the  South- 
west, including  Mississippi,  and  to  West  Virginia  and  Mich- 
igan— ten  States  in  all;  while  the  Ohio  rule,  narrowed,  in 
some  cases,  by  the  exclusion  of  certain  classes  of  corpora- 
tions, appears  in  twelve  Northern  States,  and  in  three 
Southern.1 

1  The  above  is  the  best  digest  the  writer  can  give  of  provisions  which 
vary  much  among  themselves.  The  original  Indiana  rule  runs :  "  Cor- 
porations, other  than  banking,  shall  not  be  created  by  special  act,  but 
may  be  formed  under  general  laws."  In  the  following  States  the  same 
mild  rule,  in  slightly  varying  language,  has  appeared  from  the  begin- 
ning: Iowa,  West  Virginia,  California,  Mississippi,  Utah,  and  Okla- 
homa. Mississippi  supplements  the  rule  by  an  express  declaration,  bor- 
rowed from  its  neighbor  Arkansas  (vide  infra),  that  "The  Legisla- 
ture shall  have  power  to  alter,  amend  or  repeal  any  charter  .  .  .  that 
may  hereafter  be  created." 

In  Ohio,  on  the  other  hand,  the  more  stringent  rule  appeared :  "  The 
Legislature  shall  pass  no  special  act  conferring  corporate  powers."  Virtu- 
ally identical  provisions  have  been  adopted  by  Kansas,  Nebraska  (until 
1875),  Wisconsin,  New  Jersey,  Minnesota  (until  1892),  and  Washington— 
the  latter  State  adding  an  express  prohibition  upon  the  creation  of  muni- 
cipal corporations.  Tennessee,  however,  in  1870,  preferred  the  follow- 
ing language :  "  No  corporation  shall  be  created,  or  its  powers  increased 
or  diminished,  by  special  laws " ;  and  Illinois,  in  the  same  year :  "  No 
corporation  shall  be  created  by  special  laws,  or  its  charter  extended, 
changed  or  amended";  and  provisions  similar  to  the  latter  have  since 
been  adopted  in  Pennsylvania,  Nebraska,  Louisiana,  Minnesota,  Ken- 
tucky, South  Dakota  and  Alabama.  In  Illinois,  Nebraska,  and  South 
Dakota,  however,  the  provision  does  not  apply  to  corporations  "  for 
charitable,  educational,  penal,  or  reformatory  purposes " — i.  e.  cer- 
tainly not  to  incorporated  school  districts ;  in  Louisiana  it  does  not 
apply  to  the  organization  of  levee  districts,  or  parishes,  or  to  New 
Orleans,  or  (since  1898)  to  any  municipal  corporation  containing  as 
many  as  2,500  inhabitants;  in  Wisconsin  it  does  not  apply  to  cities; 
so  also  in  Minnesota  until  1892;  and  in  Alabama  it  does  not  apply  to 
alterations  in  the  boundaries  of  cities,  towns  or  villages. 

Arkansas  and  Missouri,  finally,  have  to  a  certain  extent  changed 
places.  Arkansas,  adopting  the  original  Ohio  rule  in  1868,  re-enacted  it 


42 1 ]  MUNICIPAL  CORPORATIONS  29 

Now,  what  is  a  "  general  "  law  ?    May  the  intent  of  the 

in  1874  with  the  limitation  reserving  to  the  Legislature  the  power  of 
amendment,  that  Mississippi,  later,  with  less  apparent  reason,  adopted. 
At  the  same  time  Arkansas  excepted  charitable,  educational,  etc.,  cor- 
porations. Missouri,  on  the  other  hand,  started  in  1865  with  the  Indi- 
ana provision,  modified  by  a  special  rule  in  regard  to  large  cities.  In 
1875,  however,  it  came  over  to  the  stringent  rule  in  its  usual,  later 
form.  This  shift  of  policy  between  two  contiguous  States,  taken 
together  with  the  exceptions  made  in  Louisiana  and  Alabama,  accen- 
tuates the  tendency  of  Northern  States  to  impose  greater  restrictions 
upon  the  Legislature  than  do  the  Southern  or  Southwestern. 

The  enactment  of  these  general  laws  is  obligatory  in  Iowa,  West 
Virginia  and  Mississippi — in  Tennessee,  Illinois,  Wisconsin,  Nebraska, 
Minnesota,  South  Dakota  and  Alabama. 
References : 

Ind.  Const.  1851,  xi,  13. 

la.  Const.  1857,  viii,  i. 

Mo.  Const.  1865,  viii,  4,  5   (until  1875). 

W.  Va.  Const.  1872,  xi,  I. 

Ark.  Const.  1874,  xn>  2>  6. 

Cal.  Const.  1879,  xii,  i ;  xi,  6. 

Miss.  Const.  1890,  88,  178. 

Utah  Const.  1895,  xii,  i ;  xi,  5. 

Okla.  Const.  1907,  xviii,  i. 

*  Mich.  Const.  1908,  xii,  I,  6. 

*Ariz.  Const.  1911,  xiii,  i. 

Ohio  Const.  1851,  xiii,  i. 

Kans.  Const.  1859,  xii,  i. 

Neb.  Const.  1866,  "  Corporations,"  i ;   1875,  xi,  "  Misc.  Corps.,"  I. 

Ark.  Const.  1868,  v,  48  (until  1874)  • 

Tenn.  Const.  1870,  xi,  8. 

111.  Const.  1870,  xi,  i. 

Wise.  Am.  *  1871,  iv,  31. 

Pa.  Const.  1873,  iii,  7. 

N.  J.  Am.  1875,  iv,  7,  par.  n. 

Mo.  Const.  1875,  iv,  53;  xii,  2. 

La.  Const.  1879,  46;  1898,  48. 

Minn.  *  Am.  1881,  iv,  33,  34;  1892,  iv,  33. 

S.  D.  Const  1889,  xvii,  i ;  x,  i. 

Wash.  Const.  1889,  ii,  28,  par.  6;  xi,  10. 

Ky.  Const.  1890,  59,  par.  17. 

Ala.  Const.  1901,  104,  pars.  6,  18,  and  concl. 


30  TERRITORIAL  BASIS  OF  GOVERNMENT  [422 

preceding  provisions  be  evaded,  either  by  passing  special 
in  the  guise  of  general  legislation,  or  by  the  device  of  classi- 
fication? To  their  lists  of  enumerated  cases  (including 
treatment  of  corporations)  in  which  special  legislation  was 
forbidden,  Pennsylvania,  in  1873,  followed  by  Missouri,  two 
years  later,  added  the  requirement,  "  Nor  shall  the  Gen- 
eral Assembly  indirectly  enact  such  special  or  local  law, 
by  the  partial  repeal  of  a  general  law;  but  laws  repealing 
local  or  special  acts  may  be  passed."  1  Minnesota,  for  a  time, 
also  adopted  the  saving  provision  in  the  following  words: 
"  But  the  Legislature  may  repeal  any  existing  special  law 
relating  to  the  foregoing  subdivisions."  2  The  distinction 
between  generality  and  universality,  again,  first  appears  in 
West  Virginia,  in  1872,  in  the  requirement  that  laws  pro- 
viding for  the  organization  of  corporations  shall  be  "  uni- 
form as  to  the  class  to  which  they  relate  "  3 ;  it  was  not  until 
1889,  however,  that  a  safeguard  against  the  abuse  of  the 
classification  device  appears  in  the  South  Dakota  and  Wy- 
oming requirement  that  "  The  Legislature  shall  provide  by 
general  laws  for  the  organization  and  classification  of  mu- 
nicipal corporations.  The  number  of  such  classes  shall  not 
exceed  four,  and  the  powers  of  each  class  shall  be  defined 
by  general  laws,  so  that  no  corporation  shall  have  any 
powers,  or  be  subject  to  any  restrictions,  other  than  those 
of  all  corporations  of  the  same  class."  The  same  pro- 
vision (but  without  limitation  of  the  number  of  classes) 
was  adopted  by  South  Carolina,  in  1895.  Its  applicability 
to  the  determination  of  municipal  boundaries  is  by  no  means 
clear,  especially  in  Wyoming  and  South  Carolina,  where 

1  Pa.  Const.  1873,  "i>  7- 
Mo.  Const.  1875,  iv,  53. 

2  *  Minn.  Am.  1881,  iv,  33  (until  1892). 
1  W.  Va.  Const.  1872,  xi,  i. 


423]  MUNICIPAL  CORPORATIONS  3! 

special  legislation  affecting  municipalities  is  not  otherwise 
forbidden. l 

(d)  Simple  Referendum 

A  Referendum,  in  the  original  and  better  sense  of  the 
term,  is  the  invoking  of  popular  action  in  addition  to,  and 
as  a  check  upon,  the  powers  over  the  subject  matter  nor- 
mally possessed  by  the  Legislature.  County  Referenda, 
as  we  shall  see,  had  been  invoked  for  boundary  purposes 
for  many  years,  and  other  local  Referenda  were  also  com- 
monly required  for  particular  purposes,  before  Wyoming, 
in  1889,  provided  that  "  No  municipal  corporation  shall  be 
organized  without  the  consent  of  the  majority  of  the  electors 
residing  within  the  district  proposed  to  be  incorporated."2 

(e)  Freedom  from  Legislative  control 
Even  before  this  Wyoming  provision,  an  effort  had  been 
made  in  Missouri  to  free  the  charters  of  the  larger  cities 
from  all  Legislative  control.  This  movement  culminated, 
in  Oregon,  in  1906,  in  the  broad  provision,  "  The  legis- 
lative assembly  shall  not  enact,  amend  or  repeal  any  charter 
or  act  of  incorporation,  for  any  municipality,  city  or  town" ; 
nor  in  the  case  of  municipalities  other  than  cities  or  towns, 
was  even  any  substitute  for  Legislative  action  provided. 
Oklahoma,  the  year  following,  did  not  go  quite  so  far.  Al- 
though wide  privileges  in  the  adoption  of  local  charters  are 
here  accorded  to  cities,  the  Legislature  is  not  debarred  from 
chartering  them,  in  default  of  local  action;  nor  is  the  re- 
quirement extended  to  municipal  corporations  in  general. 
For  the  amendment  of  their  charters,  however,  the  inhabi- 
tants of  all  municipal  corporations,  however  adopted,  have 

1  S.  D.  Const.  1889,  x,  i. 
Wyom.  Const.  1889,  xiii,  i. 
S.   C.  Const.  1895,  viii,  I. 

2  Wyom.  Const.  1889,  xiii,  2. 


32  TERRITORIAL  BASIS  OF  GOVERNMENT  [424 

the  privilege  of  a  25  per  cent  initiative  petition  proposing 
an  amendment,  which  becomes  a  part  of  the  charter  after  a 
majority  vote  and  approval  by  the  Governor — the  latter 
being  obligatory,  if  there  is  no  conflict  with  the  Constitution 
and  laws  of  the  State.1 

2.   OTHER  RULES  INCIDENTALLY  AFFECTING  LOCAL 
BOUNDARIES 

The  gradual  development  of  several  of  the  preceding  pro- 
visions into  rules  affecting  not  only  corporations,  but  all 
topics  of  a  private  or  local  character,  is  an  interesting  study 
in  comparative  constitutional  enactment.  The  points  of  de- 
parture are  the  Pennsylvania  single  bill  rule  of  1838;  the 
Rhode  Island  deferred  action  rule  of  1842;  the  Indiana 
general  bill  rule  of  1851 ;  the  Pennsylvania  interpreting  rule 
of  1873;  and  the  Wyoming  Referendum  rule  of  i8892 

(a)  Extension  of  the  single  bill  rule  of  1838 
Pennsylvania,  as  we  have  seen,  had  provided  that  no  law 
should  create,  renew  or  extend  the  charter  of  more  than 
one  corporation.  Within  eight  years  Rhode  Island,  New 
Jersey  and  New  York  adopted  new  instruments.  Rhode 
Island,  we  saw,  preferred  to  require  notice  until  after  a 

1  Or  eg.  Am.  1906,  xi,  2. 
Okla.  Const.  1907,  xviii,  4. 

There  can  be  little  doubt  that  these  corporation  provisions  were 
never  intended  to  relate  to  any  political  divisions  other  than  urban 
districts.  It  has  seemed  best,  however,  to  distinguish  between  those 
which  are  applicable  only  to  urban  districts,  in  terms,  and  those  which, 
on  their  face,  have  a  broader  application— if  only  to  emphasize  the  con- 
fusion of  Constitutional  analysis  and  terminology.  For  provisions 
applicable,  in  terms,  to  urban  districts,  instead  of  to  corporations,  or 
to  municipal  corporations,  vide  ch.  iv,  sec.  i,  pp.  77-88,  infra. 

2  It  is  not  intended  by  this  method  of  treatment  to  convey  the  im- 
pression that  the  corporation  provisions  were  the  origin  of  the  later 
and  broader  provisions— merely  that  they  are  important  landmarks 
in  the  development  of  these  latter. 


425]  GENERAL  PROVISIONS  33 

fresh  election ;  but  New  Jersey  pushed  the  Pennsylvania  idea 
to  its  logical  extreme,  by  providing  that,  "  To  avoid  im- 
proper influences  which  may  result  from  intermixing  in  one 
and  the  same  act  such  things  as  have  no  proper  relation  to 
each  other,  every  law  shall  embrace  but  one  object,  and  that 
shall  be  expressed  in  the  title1 — a  provision  which  has  since 
been  copied  in  many  States,  including  Pennsylvania  itself, 
and  which,  as  establishing  a  rule  of  legislative  procedure 
in  any  and  all  cases,  carries  us  outside  the  bounds  of  our 
present  enquiry.  Its  interest  for  us  lies  in  the  modification 
which  New  York  two  years  later  introduced.  With  the 
same  moderation  which  distinguished  this  State  in  its  treat- 
ment of  corporations,  as  such,  New  York  singled  out  the 
real  evil  attendant  upon  the  passage  of  '*  omnibus  "  bills, 
and  enacted  the  New  Jersey  provision  in  the  following 
limited,  but  far  more  effective  form:  "  No  private  or  local 
bill,  which  may  be  passed  by  the  Legislature,  shall  embrace 
more  than  one  subject,  and  that  shall  be  expressed  in  the 
title."  This  single  bill  provision,  which  represents  the 
earliest  generalized  treatment  of  special  legislation,  still 
survives  in  this  State,  and  was  introduced  into  Wisconsin 
(in  which  it  is  the  only  such  treatment)  two  years  later.2 

While  this  provision  is  doubtless  effective  as  against 
"  omnibus  "  bills,  it  does  not  meet  the  evil  of  special  riders 
to  general  bills ;  nor  can  the  original  New  Jersey  restriction 
of  bills  to  one  "  object  "  have  any  effect  in  preventing  a  dis- 
criminating treatment  of  localities,  under  the  guise  of  gen- 
eral legislation.  California,  accordingly,  the  year  after 
Wisconsin,  adopted  the  following  provision :  "  All  laws  of 
a  general  nature  shall  have  a  uniform  operation  " — a  rule 
which  has  since  spread  into  several  Western  States,  and 

1  N.  J.  Const.  1844,  iv,  7,  par.  4. 

2  N.  Y.  Const.  1846,  iii,  16 ;  1894,  Hi,  16. 
Wise.  Const.  1848,  iv,  18. 


34  TERRITORIAL  BASIS  OF  GOVERNMENT  [426 

after  the  War,  to  Florida,  for  a  time,  and  to  Georgia,  per- 
manently. *  New  Jersey  also  finally  secured  the  same  result 
in  more  precise  language.2 

Finally,  in  a  few  States,  also  in  the  West  or  extreme 
Southeast,  this  uniform  operation  rule  was  later  introduced 
with  weakened  force,  being  no  longer  (unless  by  implica- 
tion) a  general  rule  of  procedure,  but  only  a  safeguard 
against  evasion  of  a  rule  prohibiting  special  legislation,  and 
as  such  applicable  only  to  enumerated  topics.  While  in 
general  the  development  has  been  from  the  enumerated 
topic  outwards,  in  these  States  the  circle  returns  upon  itself. 
In  the  latest  application  of  the  rule  to  this  purpose — in 
South  Carolina — a  proviso  has  also  been  added  which  would 
appear  to  take  away  all  its  meaning.8 

1  In  Ohio,  Kansas,  Oklahoma,  and   (since  1877)    Georgia,  "  uniform 
operation  throughout   the    State".     The  first   Georgia  provision   was 
carelessly  drawn. 
References : 

•Cal.  Const.  1849,  i»  "J  1879,  J,  "• 

Ohio  Const.  1851,  ii,  26. 

Kans.  Const.  1859,  ii,  17. 

Fla.  Const.  1868,  i,  12  (until  1885). 

Ga.  Const.  1868,  i,  26;  1877,  i,  4,  par.  i. 

N.  D.  Const.  1889,  ii. 

Wyom.  Const.  1889,  i,  34. 

Utah  Const.  1895,  i,  24. 

Okla.  Const.  1907,  v,  59. 

1 "  No  general  law  shall  embrace  any  provision  of  a  private,  special 
or  local  character."  N.  J.  Am.  1875,  iv,  7,  par.  4- 

8 "  Nothing  contained  in  this  section  shall  prohibit  the  General  As- 
sembly from  enacting  special  provisions  in  general  laws."  This  is  also 
the  only  State  in  which  the  words  "throughout  the  State"  are  not 
added. 

The  rule  affects  local  divisions  as  follows: 

Indiana  (Const.  1851,  iv,  23),  Nevada  (Const.  1864,  iv,  21),  Florida 
(Const.  1885,  iii,  21),  designation  of  places  of  voting 

Iowa  (Const.  1857,  iii,  30),  incorporation  of  cities  and  towns. 

Wisconsin   (Am.  1871,  iv,  32),  incorporations  in  general. 


427]  GENERAL  PROVISIONS  35 

(b)  Extension  of  the  deferred  action  rule  of  1842 
The  Rhode  Island  rule  had  no  imitators  until  1873, 
when  Pennsylvania,  generalizing  its  own  single  bill  rule 
into  the  usual  highly  rarified  form,  set  up  alongside  it  the 
requirement  that  no  local  or  special  bill  should  be  introduced 
without  thirty  days  prior  notice  "  in  the  locality  where  the 
matter  or  the  thing  to  be  affected  may  be  situated  ".  With 
some  minor  variations,  this  provision  has  since  been  adopted 
by  New  Jersey,  and  by  eight  Southern  States,  including 
Oklahoma. 1 

In  one  of  these  States — Florida — this  is  now  the  ,only 
general  treatment  of  special  legislation.      In  Georgia  the 

Minnesota  (Am.  1881,  iv,  34),  incorporations  in  general,  lines  of 
districts  in  general,  and  designation  of  places  of  voting. 

South  Carolina  (Const.  1895,  i">  34>  par-  12),  incorporating  or  chang- 
ing the  charters  of  cities,  towns  or  villages;  incorporating  school  dis- 
tricts. 

1  Twenty  days  notice  in  Alabama  until  1901 ;  since  then,  four  weeks. 
Four  weeks  in  Oklahoma.  Sixty  days  in  Florida.  No  period  pre- 
scribed in  New  Jersey.  In  Alabama  (since  1901)  the  notice  must  be 
in  a  paper  published  in  the  counties,  if  such  exists ;  in  Oklahoma,  in 
a  weekly  paper  published  or  circulated  in  the  city  or  counties  affected. 

Evidence  of  the  notice  must  in  all  cases  exist.  In  Missouri  and 
Louisiana,  the  notice  must  be  recited  in  the  act.  In  Alabama  the  em- 
phatic declaration  is  made  that,  "  The  Courts  shall  pronounce  void 
every  special,  private  or  local  law  which  the  Journals  do  not  affirma- 
tively show  was  passed  in  accordance  with  the  provisions  of  this  sec- 
tion." 

References : 

Pa.  Const.  1873,  iii,  8. 

Ark.  Const.  1874,  v,  26. 

Ala.  Const.  1875,  iv,  24;  1901,  106,  107. 

Mo.  Const.  1875,  iv,  54. 

Ga.  Const.  1877,  iii,  7,  par.  16. 

N.  J.  Am.  1875,  iv,  7,  par.  9. 

Tex.  Const.  1876,  iii,  57. 

La.  Const.  1879,  48;  1898,  50. 

Fla.  Const.  1885,  iii,  21. 

Okla.  Lonst.  1907,  v,  32. 


36  TERRITORIAL  BASIS  OF  GOVERNMENT  [428 

only  other  provision  is  one  which  may  be  considered  an  ex- 
tension of  this — the  requirement  of  special  committee  pro- 
cedure after  introduction.  This  latter  requirement  has  sine* 
been  independently  imposed  in  the  contiguous  State  of  Ala- 
bama, and  in  Virginia.1 

(c)  Extension  of  the  general  bill  rule  of  16*51 
The  less  stringent  character  of  the  Indiana,  as  contrasted 
with  the  Ohio,  rule  in  regard  to  corporations,  was  not  due 
to  any  distrust  of  the  principle  of  checking  special  legisla- 
tion by  constitutional  enactment.  So  far  from  this  being 
the  case,  Indiana  was  the  first  State  to  make,  in  this  same 
instrument  of  1851,  that  long  list  of  enumerated  topics,  con- 
cerning which  special  legislation  is  forbidden,  which  is  now 
so  familiar  a  feature  of  State  Constitutions.2  To  this  list 
it  appended — the  point  which  particularly  concerns  us  here 
— the  requirement  that,  "  In  all  other  cases  where  a  gen- 
eral law  can  be  made  applicable,  all  laws  shall  be  general, 
and  of  uniform  operation  throughout  the  State  ".  Similar 
provisions  were  adopted  by  Iowa  and  Kansas  before  the 
War,  and  since  then  this  provision  has  become  very  widely 
diffused,  so  that  something  of  the  sort  can  now  be  found  in 
thirty-three  instruments.8  The  importance  of  the  movement, 
it  must  be  said,  is  not  at  all  proportionate  to  its  geographical 
extension.  In  several  States  the  language  clearly  shows  that 
the  propriety  of  special  legislation  is  a  question  for  the 

1  In  Georgia  (Const.  1877,  iii,  7,  par.  15)  a  standing  committee  of  the 
lower  house,  in  which  such  legislation  must  originate,  is  organized.    In 
Mississippi  (Const.  1890,  89),  committees  of  each  house.     In  Virginia 
(Const.  1902,  51),  a  joint  committee  of  the  two  houses. 

2  Ind.  Const.  1851,  iv,  *  22. 

3  To  the  eleven  States  already  cited   (vide  p.  23,  note  I,  supra}   in 
which   no    provision    affecting    special    legislation    appears,    add    four 
more  States  on  the  borders  of  the  Union:  Wisconsin,  Oregon,  Louisi- 
ana, and  (since  1885)  Florida.    All  others  have  the  provision. 


429]  GENERAL  PROVISIONS  37 

Legislature  itself  to  decide,1  and  this  has  also  been  the  rule 
of  construction  adopted  by  the  Courts  in  the  doubtful  in- 
stances. It  is  only  in  Missouri  since  1875,  in  Minnesota 
since  1892,  in  Alabama  since  1901,  in  Kansas  since  1906, 
and  in  Michigan  since  1908,  that  the  question  is  expressly 
declared  to  be  one  for  the  Courts  to  determine. 

Apart  from  this  highly  important  addition  to  the  rule, 
only  two  points  need  be  considered  in  connection  with  this 
provision. 

One  is  the  fact  that  a  few  States,  following  Maryland  in 
1864,  instead  of  forbidding  special  legislation  where  a  gen- 
eral law  can  be  made  applicable,  forbid  special  legislation 
where  a  general  law  already  exists.2 

1  Texas    (until   1876),   New  York,   New  Jersey,   Maine,   Mississippi, 
Virginia. 

2  Some  confusion  has  been  caused  by  this.    The  Maryland  provision 
runs:  "And  the  General  Assembly  shall  pass  no  special  law  for  any 
case  for  which  provision  has  been  made  by  an  existing  general  law;" 
to  which  was  added,  both  in  1864,  and  in  1867,  a  rather  absurd  pro- 
vision requiring  the  passage  of  such  laws  at  the  first  session  after  the 
adoption  of  the  instrument.     Georgia  follows  Maryland's  major  pro- 
vision, with  only  verbal  changes.     Meanwhile  Virginia    (Const.   1850, 
iv,  35;  1870,  v,  20),  followed  by  Pennsylvania   (Am.  1864,  xi,  9),  had 
developed  a  rule,  appropriate  to  private  legislation,  in  regard  to  the 
grant  of  powers  and  privileges;  in  1872  West  Virginia,  followed  the 
next  year  by  Pennsylvania,  fused  this  with  the  usual  provision  in  lan- 
guage which,  in  the  latter  State,  took  the  following  form :  "  Nor  shall 
any  law  'be  passed  granting  powers  or  privileges  in  any  case  where  the 
granting  of  such  powers  and  privileges  shall  have  been  provided  for 
by  general  law,  nor  where  the  Courts  have  jurisdiction  to  grant  the 
same  or  give  the  relief  asked  for " ;  and  in  1890  this  was  adopted  by 
Kentucky,  in  addition  to  the  usual  provision.    Meanwhile,  in  1875,  Ala- 
bama, apparently  under  the  Pennsylvania  influence,  provided  that,  "  No 
special  or  local  law  shall  be  enacted  for  the  benefit  of  individuals  or 
corporations  in  cases  which  are  or  can  be  provided  for  by  a  general 
law,  or  where  the  relief  sought  can  be  given  by  any  Court  of  this 
State";  and  in  1890  Mississippi  adopted  this  in  addition  to  the  usual 
provision.     Finally,  in  1901,  Alabama  changed  this  to  the  requirement 
that,  "  No  special,  private  or  local  law,  except  a  law  fixing  the  time 


38  TERRITORIAL  BASIS  OF  GOVERNMENT  [430 

The  other  is  that  the  particular  requirement  for  such  laws 
that  they  shall  be  "  of  uniform  operation  throughout  the 
State  ",  appears  only  in  the  three  early  instances  of  Indiana, 
Iowa,  and  Nevada,  in  Minnesota  (north  of  Iowa),  and 
(with  the  qualification  which  seems  to  rob  it  of  all  force) 
in  South  Carolina.1 

of  holding  courts,  shall  be  enacted  in  any  case  which  is  provided  for 
by  a  general  law,  or  where  the  relief  sought,  etc" 

1  The  requirement  of  uniformity  for  all  general  laws  appears,  how- 
ever, among  these  States,  in  California,  Kansas,  Florida  (until  1885), 
Georgia,  North  Dakota,  Wyoming,  Utah  and  Oklahoma. 
References : 

Ind.  Const.  1851,  iv,  23. 

Iowa  Const.  1857,  iii,  30. 

Kans.  Const.  1859,  ii,  17;  *Am.  1906. 

Nev.  Const.  1864,  iv,  21. 

Md.  Const.  1864,  iii,  32;  1867,  iii,  33- 

Mo.  Const.  1865,  iv,  27;  1875,  iv,  53. 

Fla.  Const.  1868,  v,  18  (until  1885). 

111.  Const.  1870,  iv,  22. 

W.  Va.  Const.  1872,  vi,  39- 

Tex.  Am.  *  1874,  Const.  1876,  iii,  56. 

Pa.  Const.  1873,  iii,  7- 

N.  Y.  Am.  1874,  Const.  1894,  iii,  18. 

Ark.  Const.   1874,  v,  25. 

Neb.  Const.  1875,  iii,  15. 

N.  J.  Am.  1875,  iv,  7,  par.  u. 

Maine  Am.  1876. 

Colo.  Const.  1876,  v,  25. 

Ga.  Const.  1877,  i,  4.  par.  I. 

Cal.  Const.  1879,  iv,  25. 

Mont.  Const.  1889,  v,  26. 

N.  D.  Const.  1889,  70. 

S.  D.  Const.  1889,  iii,  23. 

Wyom.  Const.  1889,  iii,  27. 

Ky.  Const.  1890,  59,  60. 

Miss.   Const.   1890,  87. 

Minn.  Am.  *  1892,  iv.  33- 

S.  C.  Const.  1895,  iii,  34- 

Utah  Const.  1895,  vi,  26. 

Ala.  Const.  1901,  105,  no. 


43 1  ]  GENERAL  PRO  VISIONS  39 

(d)  Extension  of  the  interpreting  rule  of  1873 

We  have  seen  that  while  in  several  States  an  already 
developed  rule,  requiring  the  uniform  operation  of  general 
laws  throughout  the  State,  was  seized  upon  as  a  convenient 
means  of  defining  just  what  was  meant  by  the  insistence 
upon  "  general  laws  "  for  certain  topics,  in  Pennsylvania 
and  Missouri,  on  the  other  hand,  a  special,  and  quite  differ- 
ent, rule  of  interpretation  was  made  applicable,  at  the  be- 
ginning, only  to  enumerated  topics.  This  rule  became  later 
extended  in  an  interesting  manner. 

The  original  provision,  it  will  be  recalled,  consisted  of 
two  parts :  a  restriction ;  and  a  saving  clause.  When  the  re- 
striction, providing  that  general  laws  might  not  be  partially 
repealed,  in  such  a  way  as  indirectly  to  enact  "such"  special 
law,  was  adopted  by  Missouri,  North  Dakota,  and  Alabama, 
its  position  in  the  instrument  was  changed  in  such  a  way 
as  to  make  it  applicable,  logically  enough,  to  all  proper  sub- 
jects of  general  legislation,  under  the  blanket  provision  just 
discussed.  This  is  the  first  phase  of  the  extension,  and  re- 
quires no  comment.2  When,  however,  Louisiana,  in  1879, 

Va.  Const.  1902,  64. 
Okla.  Const.  1907,  v,  59. 

*  Mich.  Const.  1908,  v,  30. 
*N.  Mex.  Const.  1911,  iv,  24. 

*  Ariz.  Const.  1911,  iv,  2,  19,  par.  20. 
1  Vide  sec.  i  (c),  p.  30,  supra. 

8  Local  divisions  are  affected  as  follows : 

Pennsylvania  (Const.  1873,  iii,  7),  incorporations  in  general,  lines  of 
townships  and  boroughs  in  general,  changing  the  lines  of  school  dis- 
tricts, designation  of  places  of  voting. 

Missouri  (Const.  1875,  iv,  53),  the  same,  without  reference  to  bor- 
oughs. 

North  Dakota  (Const.  1889,  69,  70),  incorporating  or  changing  the 
charters  of  cities,  towns  and  villages;  designation  of  places  of  voting. 

Alabama  (Const.  1901,  105),  only  as  they  fall  within  the  (peculiar) 
blanket  provision. 


40  TERRITORIAL  BASIS  OF  GOVERNMENT  [432 

adopting  the  same  provision,  omitted  the  word  "  such  ",  its 
character  became  entirely  changed.  In  lieu  of  a  mere  safe- 
guard against  evasion,  applicable  only  to  certain  subjects, 
it  became  an  absolute  rule  of  procedure,  applicable,  like  the 
rule  of  notice,  to  all  subjects.  Kentucky,  in  1890,  added  an- 
other link  in  the  chain  of  development  by  prohibiting  the 
Legislature  also  from  "  exempting  from  the  operation  of  a 
general  act  any  city,  town,  district  or  county  " ;  Alabama, 
in  1901,  provided  independently  that  "  No  bill  introduced 
as  a  general  law  shall  be  so  amended  on  its  passage  as  to 
become  a  special,  private  or  local  law  " ;  finally,  Virginia, 
the  year  following,  provided  that  "  the  amendment  or  par- 
tial repeal  [of  a  general  law]  shall  not  operate  directly  or 
indirectly  to  enact,  and  shall  not  have  the  effect  of  the  enact- 
ment, of  a  special,  private  or  local  law  "  l  Thus,  by  a 
curiously  roundabout  route,  we  reach  Southern  rules  of  gen- 
eral procedure  very  closely  resembling,  if  not  identical  with, 
the  Western  rule  of  uniform  operation. 

Similarly  with  the  saving  clause,  "  but  laws  repealing 
local  or  special  acts  may  be  passed  ".  In  Missouri  and 
North  Dakota  this  has  become  applicable  at  least  to  the 
blanket  provision ; 2  in  Louisiana  and  Kentucky  it  has  a  gen- 
eral application,  for  what  it  is  worth;3  while  in  Minnesota 

1  Some  such  rule  is  desirable,  of  course,  to  protect  the  "  notice "  or 
*  committee "   rule  from  evasion.     This  excuse  for  its  existence  does 
not  exist,  however,  in  Kentucky. 

References : 

La.  Const.  1879,  47;  1898,  49. 
Ky.  Const.  1890,  60. 
Ala.  Const  1901,  in. 
Va.  Const.  1902,  64. 

2  Mo.  Const.  1875,  iv,  53. 
N  .D.  Const.  1889,  70. 

3  La.  Const.  1879,  47 ;  1898,  49- 
Ky.  Const.  1890,  60. 


433]  GENERAL  PROVISIONS  4! 

and  Alabama  it  has  received  a  special  development  of  its 
own.  Minnesota  was  so  anxious  to  emphasize  the  fact  that 
the  license  to  repeal  special  acts  is  not  to  be  construed  as  a 
license  to  amend  them,  that — inadvertently  perhaps — it 
dropped,  in  1892,  the  words  "  relating  to  the  foregoing  sub- 
divisions," and  thus  stumbled  upon  a  brand-new  definition 
of  a  type  of  special  legislation  which  is  forbidden :  "  The 
Legislature  may  repeal  any  existing  special  or  local  law, 
but  shall  not  amend,  extend  or  modify  any  of  the  same",1 
Alabama,  on  the  other  hand,  has  introduced  the  refinement 
that  special  legislation  repealing  or  modifying  special  legis- 
lation is  permissible  only  under  the  prescribed  rules  for 
notice.  2 

These  absurd  quibbles  simply  illustrate  the  inadequacy 
of  this  entire  treatment  of  the  administrative  problem. 

(e)  Extension  of  the  Referendum  rule  of  1889 

The  logical  extreme  of  the  tendency  to  demand  Refer- 
enda, in  particular  types  of  districts,  upon  particular  topics 
of  legislative  action,  would  be  to  require  that  the  Legisla- 
ture shall  enact  no  law  whatsoever,  specially  affecting  any 
locality  of  any  sort,  without  submitting  it  to  the  voters  of 
the  locality  in  question.  This  extreme  step  has  been  taken, 
very  recently,  by  Michigan.3  In  Ohio,  on  the  other  hand. 
the  extension  of  the  Referendum  is  perhaps  forbidden  in 
the  following  words :  "  Nor  shall  any  act,  except  such  as 
relate  to  public  schools,  be  passed,  to  take  effect  upon  the 
approval  of  any  other  authority  than  the  General  Assembly, 
except  as  otherwise  provided  in  the  Constitution  of  this 

1  Minn.  Am.  *  1892,  iv,  33. 

*  Ala.  Const.  1901,  107. 

3  *  Mich.  Const.  1908,  v,  30. 


42  TERRITORIAL  BASIS  OF  GOVERNMENT  [434 

State."  Oregon,  however,  adopting  this  provision  in, 
1857,  added  to  it  this  significant  proviso:  "  Provided,  That 
laws  .  .  .  submitting  town  and  city  corporate  acts  and 
other  local  and  special  laws  may  take  effect  or  not,  upon  a 
vote  of  the  electors  interested."  2  In  the  other  States  the 
Ohio  provision  does  not  occur,  so  that  there  can  be  no 
doubt  as  to  the  competency  of  the  Legislature  to  introduce 
local  Referenda  whenever  it  pleases;  while  even  in  Ohio 
it  is  certainly  free  to  ascertain  the  sense  of  the  community 
before  passing  the  measure. 

Furthermore,  in  the  general  movement  for  more  direct 
popular  government  which  has  latterly  swept  over  several 
Western  States,  and  of  which  the  old-fashioned  Referendum 
provisions  may  be  considered  as  the  premonitory  symptom, 
there  has  developed,  as  is  well  known,  an  Initiative-Refer- 
endum privilege  of  the  whole  State  as  against  the  Legisla- 
ture, the  essence  of  which  is,  first,  that  a  Referendum  may 
be  demanded  upon  any  measure,  by  a  petition  signed  by  a 
certain  per  cent  of  the  voters ;  and  second,  that  by  a  similar 
petition  measures  may  be  directly  framed,  and  submitted 
over  the  head,  so  to  speak,  of  the  Legislature.  By  an  easy 
analogy,  this  device  has  come  to  be  applied  in  a  few  States 
to  all  local  divisions,  against  their  own  local  authorities  at 
least ;  and  sometimes  even  against  the  Legislature.  As  would 
naturally  be  expected  of  a  scheme  the  immediate  origin  of 
which  is  not  so  much  the  negative  one,  of  checking  the  Leg- 
islature, as  the  positive  one,  of  putting  all  possible  power 
in  the  hands  of  the  people,  this  device  is  thus  in  some  ways 
less  extreme,  in  other  ways  more  extreme,  than  the  old- 
fashioned  obligatory  Referendum,  pushed,  as  in  Michigan,  to 

1  Ohio  Const.  1851,  ii,  26.  Section  30  imposes  a  Referendum  upon 
changes  of  county  lines  (vide  ch.  iii,  i(b),  2(b),  infra}.  Query:  Is  a 
popular  electorate  an  "authority"? 

8  Oreg.  Const.  1857,  i,  22. 


435]  GENERAL  PROVISIONS  43 

its  logical  conclusion.  It  is  less  extreme,  in  that  in  the 
absence  of  a  petition  no  Referendum  occurs.  It  is  more 
extreme,  in  that  it  provides  a  means  whereby  the  authority 
against  which  it  is  directed  may  be  not  only  checked,  but 
superseded.  As  with  some  of  the  provisions  already  dis- 
cussed, the  bearing  of  all  this,  upon  the  exterior  boundaries 
of  districts,  is  somewhat  remote.  To  possible  subdivision 
of  these  districts,  however,  whether  by  the  local  authorities 
or  by  the  Legislature,  these  provisions  apply  directly. 

Six  States  have  adopted  provisions  of  this  sort:  Utah, 
for  "  any  legal  subdivision  of  the  State " ;  Oregon,  for 
"  every  municipality  and  district  " ;  Oklahoma,  for  "  every 
municipal  corporation,"  and  "  every  county  and  district " ; 
Maine,  for  municipalities ;  Arkansas,  for  "  each  municipal- 
ity," and  "  each  county  " ;  Colorado,  for  "  every  city,  town 
and  municipality  ".  Utah  voters,  "  or  such  fractional  part 
thereof  as  may  be  provided  by  law  ",  exercise  .their  powers 
"  under  such  conditions,  and  in  such  manner,  and  within 
such  time  as  may  be  provided  by  law  ",  and  no  legal  provi- 
sion has  in  fact  been  made.  In  Maine  the  establishment  of 
a  uniform  method  is  optional  with  the  Legislature.  In  the 
four  other  instances  the  Legislature  is  required  to  pass 
general  laws  upon  the  subject,  or  details  are  placed  within 
the  competence  of  other  organs,  or  are  defined  outright  in 
the  Constitution.  In  Oregon,  Arkansas  and  Colorado  the 
privilege  seems  to  be  accorded  even  against  the  Legislature.1 

1  The  Oregon  and  Colorado  reservation  of  powers  to  the  people  ap- 
plies to  "  all  local,  special  and  municipal  legislation,  of  every  character, 
in  and  for  their  respective  municipalities  and  districts."  In  Arkansas, 
the  people  of  the  localities  are  empowered  to  act  "as  independent 
of  the  legislative  assembly."  For  details  as  to  per  cent,  of  voters, 
etc.,  vide  ch.  iv,  sec.  i,  6,  pp.  87-8,  infra. 
References : 

Utah  Am.  1900,  vi,  I,  par.  2. 

Oregon.  Am.  1906,  iv,  la. 


44  TERRITORIAL  BASIS  OF  GOVERNMENT  [436 

Finally,  in  strong  contrast  with  the  preceding,  New 
Mexico  not  only  does  not  extend  its  Referendum  provision 
to  the  people  of  the  localities,  but  excludes  from  the  opera- 
tion of  its  general  Referendum  local  or  special  laws — a 
very  suggestive  distinction.1 

(f)  The  Tennessee  authorization  of  judicial  control 
While  in  the  Far  West  the  tendency  is  to  develop  popu- 
lar and  local  checks  upon  the  Legislature,  to  the  point  even 
of  displacing  legislative  control  over  localities,  in  Tenn- 
essee, on  the  other  hand — the  original  home  of  the  county 
Referendum — no  such  development  has  occurred.  Instead, 
a  peculiar  provision  survives  from  the  period  when  the 
Judiciary  was  considered  the  natural  arbiter  of  local  affairs, 
and  State  Legislatures  had  not  begun  that  policy  of  minute 
administrative  control  which  has  called  forth  elaborate 
checks  and  restrictions.  As  early  as  1798  Georgia  had 
required  the  Legislature  to  vest  control  over  certain  enum- 
erated topics  in  the  Courts.  Since  1834,  Tennessee,  extend- 
ing this  idea,  has  broadly  authorized  its  Legislature  to  "  vest 
such  powers  in  the  courts  of  justice,  with  regard  to  private 
or  local  affairs,  as  may  be  deemed  expedient  ".2 

3.  SUMMARY 

The  preceding  provisions  are  the  unfortunate  outcome  of 
an  interesting  chain  of  events.  The  notion  that  the  Legis- 
lature shall  confine  itself  to  acts  of  general  application  is  a 
not  unnatural  one  in  itself,  and  receives  an  additional  stimu- 

Okla.  Const.  1907,  v,  5;  xviii,  4. 

*  Me.  Am.  1908,  iv,  part  iii,  21. 

*  Ark.  Am.  1910,  v,  i. 
*Colo.  Am.  1910,  v,  i. 

1  *  N.  Mex.  Const.  1911,  iv,  i. 

*Tenn.  Const.  1834,  xi,  8;  1870,  xi,  9.     Cf.  Ga.  Const  1798,  i,  26; 
1868,  iii,  6,  par.  5;  1877,  iii,  7,  par.  18. 


437]  GENERAL  PROVISIONS  455 

I  us  from  the  theory  of  the  separation  of  powers.  The  appli- 
cation of  governmental  powers  to  particular  instances,  how- 
ever, is  of  the  very  essence  of  government,  and  has  to  be 
performed  by  somebody.  In  the  English  system  of  govern- 
ment these  powers,  so  far  as  not  absorbed  by  an  encroach- 
ing Parliament,  were  exercised  by  the  Crown.  At  the  time 
of  the  Revolution,  the  prejudice  against  the  Colonial  Gov- 
ernor led  to  the  reduction  of  the  Executive  into  an  officer  of 
enumerated  powers.  In  addition  to  the  few  special  functions 
— such  as  the  granting  of  pardons — which  he  might  per- 
form, and  to  the  functions  of  the  Courts  in  applying  the 
civil  and  criminal  law,  there  remained  a  broad  field  "of  ad- 
ministrative activity  for  which  no  constitutional  organ  was 
provided.  The  Legislature,  therefore,  as  the  organ  of  re- 
siduary powers,  was  obliged  either  to  complete  the  work  of 
the  Convention,  and  provide  such  organ  or  organs,  or  to 
exercise  these  powers  itself.  It  chose  the  latter  as  the 
simpler  and  more  congenial  course. 

Now,  a  Legislature  is  not  apt  to  perform  acts  of  injustice 
as  between  man  and  man.  But  as  a  nursery  of  special  privi- 
lege, or  injustice  as  between  an  individual  and  the  rest  of 
the  State,  nothing  better  could  have  been  devised  than  free 
Legislative  action.  The  private  interest,  which  is  benefited 
much,  influences  its  local  representative  directly;  the  rest 
of  the  citizens  do  not  receive  any  remarkable  injury,  and 
have  no  one  upon  whom  to  bring  pressure,  even  if  they  do 
remark  it.  Two  representatives,  each  with  a  grateful  con- 
stituent to  please,  indulge,  between  themselves,  in  the 
friendly  game  of  "  log-rolling ",  which  seems  to  benefit 
everybody,  including  themselves,  and  to  hurt  no  one.  In 
other  words,  the  lack  of  any  administrative  organization 
worked  so  badly  that  in  time  the  public  woke  up  to  the  evils 
of  the  situation.  Instead,  however.,  of  providing,  through 
the  Constitution,  for  an  organization  to  take  the  place  of 


46  TERRITORIAL  BASIS  OF  GOVERNMENT  [438 

the  Legislature,  attempts  were  made  to  utilize  this  body 
still,  either  by  compelling  it  to  pass  special  acts  only  under 
special  restrictions;  or,  more  commonly,  by  forbidding  it 
to  make  special  applications  itself,  but  authorizing  or  re- 
quiring it  to  devise  an  organization  which  might  make  them. 
This  task  of  completing  the  political  structure,  by  the  crea- 
tion of  multitudinous  "  Boards  ",  the  Legislature  has  zeal- 
ously pursued,  and  is  still  pursuing.  To  some  extent,  of 
late,  these  Boards  have  been  placed  upon  a  Constitutional 
basis,  but  the  limited  extent  to  which  this  has  been  done  is 
a  clear  case  of  abdication,  by  the  Convention,  of  its  normal 
functions,  and  is  a  measure  of  our  laggardness  in  conceiv- 
ing, as  a  whole,  the  important  problem  of  administrative 
organization. 

Criticism  of  the  Legislature's  own  contributions  to  the 
solution  of  this  problem  does  not  belong  here.  It  may  be 
said,  however,  that  the  attitude  taken  by  the  Courts  in  con- 
struing the  meaning  of  the  term  "  special  legislation  "  has 
resulted  in  making  this  class  of  provisions  perhaps  the  least 
satisfactory  in  the  whole  field  of  Constitutional  law;  and 
that  their  general  phrasing,  in  terms  which,  on  their  face, 
require  a  general  law  for  the  rectification  even  of  a  local 
boundary,  has  no  justification  in  common  sense,  but  is  a 
mere  incident  of  ill-considered  drafting. 


CHAPTER  III 
THE  COUNTY 

THE  county  has  been  ail  but  universal  in  the  States.  In- 
troduced at  an  early  date  into  almost  all  the  Colonies,  and 
into  almost  all  the  United  States  territories  from  which  later 
States  were  formed,  it  has  been  more  uniformly  utilized, 
.at  least  as  a  judicial  area,  than  any  other  territorial  division. 
In  Massachusetts,  Connecticut  and  Rhode  Island  it  rested 
upon  only  a  statutory  basis  until  the  surviving  Charters  of 
these  States  were  superseded  by  formal  Constitutions.1  In 
South  Carolina,  before  the  Civil  War,  the  ancient  county 
divisions  seem  to  have  been  utilized  chiefly  as  a  means  of 
identifying  parishes  lying  within  the  same; 2  "  Judicial  dis- 
tricts ",  however,  are  mentioned  in  an  amendment  of  1828, 
and  in  1868  the  title  of  these  was  formally  changed  to 
"  counties  ".3  In  Louisiana,  counties  appear  under  this 
name  only  until  1845;  the  s^ze  and  general  treatment,  how- 
ever, of  "  parishes  "  since,  justifying  us  in  considering  these 
as  being,  from  the  beginning,  equivalent  to  counties.  Since 
1875,  tne  larger  Missouri  cities  may  have  the  functions, 
without  the  name,  of  counties.  California,  finally,  contained 
no  counties  prior  to  their  mandatory  establishment  by  the 

1  Passing  references  to  the  county  may  be  found  in  the  Massachu- 
setts Charter  of  1691.  (Thorpe,  pp.  1875,  1878.) 

2Cf.  S.  C.  Const.  1776,  ii ;  1778,  13;  1790,  i,  3,  7-  In  1778,  however, 
(Const.  1778,  39),  the  whole  State  was  required  to  be  divided  into  coun- 
ties and  districts,  and  county  courts  established. 

3  S.  C.  Const.  1868,  ii,  3. 

439]  47 


48  TERRITORIAL  BASIS  OF  GOVERNMENT  [440 

Legislature.  The  only  other  exceptions  to  the  uniform  rule 
of  the  county  has  been  in  connection  with  the  problem  of 
providing  for  territory  too  sparsely  settled  to  support  county 
organizations.1 

Express  restrictions  upon  Legislative  control  over  county 
lines  first  appeared  in  Tennessee  in  1796.  As  late  as  1820 
they  were  found  in  the  instruments  of  only  half  a  dozen 
Western  States.  Since  then,  they  have  been  somewhat 
slowly  introduced  into  old  States  as  well  as  new,  until  now 
they  exist  in  thirty-seven  States  in  all,  the  exceptions  being 
the  six  New  England  States,  New  Jersey,  Delaware,  North 
Carolina,  Nevada  and  Arizona.2 

I.    CREATION   OF  NEW   COUNTIES 

Restrictions  upon  the  creation  of  new  counties  were  the 
first  to  develop.  These  may  be  classified  into  three  broad 
groups :  First,  direct  limitations  upon  the  result  to  be  at- 
tained in  the  creation  of  new  counties,  including  prescrip- 
tions in  regard  to  the  area,  population,  or  amount  of  taxable 
property  to  be  included.  Second,  rules  as  to  the  manner  in 
which  the  power  to  create  new  counties  is  to  be  exercised, 
including  particularly  the  requirement  of  an  extraordinary 
majority  in  the  Legislature,  or  of  a  local  Initiative  or  Refer- 
endum. Third,  absolute  prohibition  upon  the  creation  of 
new  counties. 

(a)  Direct  limitations 

Beginning  with  Tennessee  in  1796,  a  minimum  area  was 
mentioned  in  all  new  States  before  the  War  except  Maine, 
Florida,  Wisconsin  and  California ;  and  in  six  of  the  States 
admitted  subsequently.  Michigan  dropped  the  restriction  in 
1850,  but  since  then,  it  has  been  extended  also  to  Virginia, 

1  Vide  ch.  v,  sec.  ii,  pp.  101  et  seq.,  infra. 

'Indirectly,  the  number  of  counties  in  New  Jersey  is  limited  to  60 
(N.  J.  Const.  1844,  iv,  3). 


441]  THE  COUNTY  49 

to  the  three  States  to  the  north  and  west  of  this,  and  to 
South  Carolina.1  The  restriction  has  usually  applied  both 
to  the  new  county,  and  to  the  reduced  county  or  counties 
thereby  resulting;  not,  however,  in  several  States  which 
first  adopted  the  provision  between  1816  and  i85O.2  The 

1  Not   introduced  into    Illinois   until    1848 ;    in   Iowa   until    1857 ;   in 
Nebraska  until  1875.    Not  introduced  into  Louisiana  until  1845,  nor  re- 
vived after  the  War  until  1879. 
References : 

Tenn.  Const.  1796,  ix,  4;  1834,  x,  4;  1870,  x,  4. 

Ohio  Const.  1802,  vii,  3;  1851,  ii,  30. 

Ind.  Const.  1816,  xi,  12;  1851,  xv,  7. 

Miss.  Const.  1817,  vi,  19;  1832,  vii,  17;  1868,  iv,  37;  1890,  260. 

Ala.  Const.  1819,  vi,  16,  17;  1867,  ii,  2;  1875,  ii,  2;  1901,  39. 

Mo.  Const.  1820,  iii,  34;  Am.  1849,  iii;  Am.  1861 ;  Const.  1865,  iv, 
31 ;  1875,  ix,  3,  15,  23. 

Mich.  Const.   1835,  xii,  7   (until  1850). 

Ark.  Const.  1836,  iv,  29;  Am.  1850;  Am.  1859;  Const.  1868,  xv,  12; 
1874,  xiii,  i. 

Tex.  Const.  1845,  vii,  34;  1868,  xii,  24;  1876,  ix,  i. 

La.  Const.  1845,  8;  1852,  8;  1879,  249;  1898,  277. 

111.  Const.  1848,  vii,  i ;  1870,  x,  i. 

Va.  Const.  1850,  iv,  34;  1870,  v,  19;  1902,  61. 

Pa.  Am.  1857,  xii;  Const.  1873,  xiii. 

Iowa  Const.  1857,  xi,  2. 

Minn.  Const.  1857,  xi,  I,  2. 

Or.  Const.  1857,  xv,  6. 

Kans.  Const.  1859,  ix,  i. 

W.  Va.  Const.  1862,  vii,  12;  1872,  ix,  8. 

Md.  Const.  1864,  x,  i;  1867,  xiii,  I. 

S.  C.  Const.  1868,  ii,  3;  1895,  vii. 

Neb.  Const.  1875,  x,  i. 

N.  D.  Const.  1889,  167. 

S.  D.  Const.  1889,  ix,  i. 

Idaho  Const.  1889,  xviii,  4. 

Ky.  Const.  1890,  63. 

Okla.  Const.  1907,  xvii,  4. 

8  In  Missouri,  Arkansas  and  in  Texas  since  1876,  only  to  the  new 
county,  and  to  counties  established  prior  to  the  adoption  of  the  instru- 
ment. In  Michigan  (until  1850)  only  to  this  last  type  of  county.  In 
Indiana  the  requirement  has  consistently  been  applied  only  to  the  parent 


50  TERRITORIAL  BASIS  OF  GOVERNMENT  [442 

most  usual  figure  has  been  400  square  miles,  running  larger 
in  the  South,  especially  in  the  early  years.1  Exceptions  to 
the  general  rule  occur  in  several  States,2  and  in  two  cases 
a  maximum  area  is  also  mentioned.8 

A  later  requirement,  originating  in  New  York  in  1821, 
was  that  of  a  minimum  population.  In  1834  it  was  adopted 

county.  In  Texas,  until  1876,  and  in  Pennsylvania  until  1873,  only  to 
the  new  county. 

In  the  case  of  old  counties,  the  language  is  that  they  may  not  be  re- 
duced below  the  minimum.  Indiana,  since  1851,  and  West  Virginia, 
until  1872,  are  the  only  States  in  which  it  is  clearly  stated  that  counties 
already  below  the  minimum  may  not  be  further  reduced. 

1  400  square  miles  in  Pennsylvania,  Maryland,  West  Virginia,  Ken- 
tucky, Ohio,  Indiana,  Illinois,  Michigan,  Minnesota,  Nebraska,  Idaho, 
Oklahoma  and  Oregon. 

432  sq.  m.  in  Iowa  and  Kansas. 

600  sq.  m.  in  Virginia. 

625  sq.  m.  in  Louisiana. 

400  sq.  m.  in  Missouri  until  1849;  400  for  old  and  500  for  new  until 
1865;  then  500  for  both  until  1875;  then  410. 

576  sq.  m.  in  Mississippi  before  the  War;  since,  400. 

625  sq.  m.  in  Tennessee  until  1834 ;  then  625  for  old,  and  350  for  new 
until  1870;  then  500  for  old  and  275  for  new. 

625  sq.  m.  in  South  Carolina,  1868-95 ;  then  500  for  old  and  400  for 
new. 

24  "Congressional  Townships"   (864  sq.  m.)  in  the  Dakotas. 

900  sq.  m.  in  Alabama  and  Arkansas  before  the  War;  then  600. 

ooo  sq.  m.  in  Texas  until  1876 ;  then  700  usually,  the  old  figure  being 
retained,  however,  for  counties  to  be  formed  in  territory  not  already 
organized. 

3  The  most  important  exceptions  are  in  Ohio,  1851  (rule  not  applicable 
in  the  division  of  counties  containing  over  100,000  inhabitants),  and 
in  Minnesota,  1857,  and  Missouri,  1875  (rule  not  applicable  in  the 
erection  of  cities  into  counties).  In  Texas,  since  1876,  border  coun- 
ties may  be  erected  under  size.  Special  cases  excepted  in  Tenn.  since 
1834;  Ark.  1836-50,  and  cf.  Am.  1859;  Va.  since  1850;  Iowa  since  1857; 
Mo.  1861-65,  and  since  1875  (City  of  St.  Louis)  ;  Ala.  since  1901. 

8  Mississippi,  1868-90,  min.  400,  max.  625,  for  both  old  and  new  coun- 
ties. Texas  since  1876,  min.  700,  max.  900,  for  new  counties,  in  ter- 
ritory already  organized. 


443]  THE  COUNTY  5! 

by  Tennessee,  and  since  then  has  spread  pretty  generally 
through  the  South  and  Far  West,  and  to  Pennsylvania — 
usually  in  combination  with  the  area  provision.1  In  the 
middle  West  it  has  appeared  only  as  a  special  provision  for 
densely-populated  sections,  in  the  absence  of,  or  as  an  excep- 
tion to,  the  general  rule  for  area.2  Louisiana,  Arkansas  and 
Ohio  present  the  only  instances  before  the  War  of  the  ap- 
plication of  the  rule  to  both  the  new  and  the  parent  county ; 

1  The  only  States  in  which  a  general  limitation  of  population  has  been 
imposed,  without  the  limitation  af  area,  are  New  York,  Florida,  Cali- 
fornia, Washington  and  Wyoming. 

The  requirement  was  not  revived  in  Florida  after  the  War ;  nor  in 
Arkansas  until  1874 ;  nor  in  Louisiana  until  1879.    It  appeared  in  Texas 
only  between  1868  and  1876. 
'References : 

N.  Y.  Const.  1821,  i,  7;  1846,  iii,  5;  1894,  Hi,  5. 

Tenn.  Const.  1834,  x,  4;  1870,  x,  4. 

Ark.  Const.  1836,  iv.  29;  1874,  xiii,  I. 

Fla.  Const.  1838,  ix,  4  (until  the  War). 

La.  Const.  1845,  8;  1852,  8;  1879,  2495  1898,  277. 

Mo.  Am.  1849,  iii ;  Const.  1865,  iv,  31 ;  1875,  ix,  3. 

Va.  Const.  1850,  iv,  34;  1870,  v.  19;  1902,  61. 

Oreg.  Const.  1857,  xv,  6. 

W.  Va.  Const.  1862,  vii,  12;  1872,  ix,  8. 

Ala.  Const.  1867,  ii,  2;  1875,  ii,  2;  1901,  39. 

Tex.  Const.  1868,  xii,  24,  45  (until  1876). 

Pa.  Const.  1873,  xiii. 

Cal.  Const.  1879,  xi»  3- 

N.  D.  Const.  1889,  167. 

Wash.  Const.  1889,  xi,  3. 

Wyom.  Const.  1889,  xii,  2. 

Ky.  Const.  1890,  64. 

S.  C.  Const.  1895,  vii,  3,  4. 

Okla.  Const.  1907,  xvii,  4. 

a  Cities  containing  a  minimum  population  may  be  erected  into  separate 
counties  in  Michigan  (Const.  1850,  x,  2 ;  *  1908,  viii,  2)  and  Minnesota 
(Const.  1857,  xi,  2). 

Counties  containing  100,000  inhabitants  may  be  divided,  each  part 
to  contain  a  minimum  population,  in  Ohio  (Const.  1851,  ii,  30). 


52  TERRITORIAL  BASIS  OF  GOVERNMENT  [444 

States  newly  adopting  it  since  the  War  all  apply  it  thus.1 
The  original  requirement,  and  the  one  most  usually  imposed 
before  1850,  was  that  the  county,  to  which  the  rule  was 
applied,  should  not  contain  a  number  of  inhabitants,  or  of 
electors,  below  that  which  would  entitle  it  to  one  represen- 
tative in  the  lower  house.  Tennessee  and  Texas  required 
an  absolute  number  of  electors.  The  modern  rule  is  an 
absolute  number  of  inhabitants,  ranging  from  20,000  in 
Pennsylvania  and  the  Middle  West,  to  1,000  in  North 
Dakota.  * 

1  In  New  York,  Tennessee  and  Oregon,  the  requirement  has  con- 
sistently been  applied  only  to  the  new  counties;  so  also  in  Michigan 
and  Minnesota  (city-county).  In  Florida  (until  the  War),  in  Missouri, 
1849-65  and  since  1875,  and  in  Virginia,  it  has  been  applied  only  to  the 
parent  county.  In  Arkansas,  and  in  Missouri,  1865-75,  only  to  the 
new  county,  and  to  parent  counties  established  prior  to  the  adoption 
of  the  instrument. 

West  Virginia,  until  1872,  is  the  only  case  in  which  it  is  clearly 
stated  that  parent  counties,  already  below  the  minimum,  may  not  be 
reduced  further. 

Rule  not  applicable  to  special  cases  in  Tennessee  since  1834,  in  Vir- 
ginia since  1850,  and  in  Missouri,  1861-65. 

3  Ratio  of  representation  in  New  York,  Missouri  and  Alabama ;  in 
Florida,  Arkansas  and  Louisiana,  before  the  War;  and  in  South  Caro- 
lina for  new  counties. 

350  electors  in  Tennessee,  1834-70;  since  then,  700.  150  electors  in 
Texas,  1868-76. 

20,000  inhabitants  in  Pennsylvania,  and  (under  the  special  provi- 
sions in  Michigan,  Ohio  and  Minnesota.  In  1908,  However,  the  figure 
for  Michigan  city-counties  was  raised  to  100,000. 

15,000  in  Oklahoma,  and,  for  old  counties,  in  South  Carolina. 

12,000  in  Kentucky. 

7,000  in  Louisiana. 

4,000  whites  in  Virginia,  1850,  until  the  War,  and  counties  containing 
less  could  be  reduced  one-fifth;  1870-1902,  same,  but  8,000  inhabitants; 
since  1902,  8,000  inhabitants  only.  4,000  whites  in  West  Virginia, 
1862-72 ;  since  then,  6,000  inhabitants. 

8,000  inhabitants  for  old  counties,  and  5,000  for  new,  in  California. 

5,000  in  Arkansas. 

2,000  in  Washington. 


445J  THE  COUNTY  53 

Of  other  rules  governing  the  location  of  county  lines,  the 
most  prevalent  has  been  the  requirement  that  the  boun- 
dary of  the  new  county  shall  not  pass  within  a  certain  num- 
ber of  miles — most  often  ten — of  an  already  established 
county  seat.  Originating  in  Tennessee,  in  1834,  this  re- 
quirement was  copied  by  Illinois  in  1848,  and  then  not  again 
until  Pennsylvania  adopted  it  in  1873,  smc^  when  it  has 
been  taken  up  by  eight  Southern  States,  including  Cali- 
fornia and  Oklahoma.  It  has  usually  appeared  in  combina- 
tion with  both  the  preceding  provisions.1  In  a  few  instances, 
also,  attempts  have  been  made  to  secure  square  counties,2  or 
the  recognition  of  already  existing  administrative  or  natural 
boundaries.8 

1,500  in  Wyoming. 
1,200  in  Oregon. 
1,000  in  North  Dakota. 

1  In  Illinois  and  Texas,  only  in  connection  with  the  area  provision. 
In  California,  only  in  connection  with  the  population  provision. 
References : 

Tenn.  Const.  1834,  x,  4  (twelve  miles)  ;  1870,  x,  4  (eleven). 

111.  Const.  1848,  vii,  i;  1870,  x,  I  (ten  miles). 

Pa.  Const.  1873,  xiii  (ten). 

Ark.  Const.  1874,  xiii,  4  (ten). 

Mo.  Const.  1875,  ix,  3  (ten). 

Tex.  Const.  1876,  ix,  i   (twelve). 

Cal.  Const.  1879,  x*>  3  (five). 

Ky.  Const.  1890,  63   (ten). 

S.  C.  Const.  1895,  vii,  5  (eight). 

Ala.  Const.  1001,  40  (seven). 

Okla.  Const.   1907,  xvii,  4   (ten). 

Special  exceptions  in  Tennessee,  Arkansas  and  Alabama. 

J  By  Mo.  Const.  1820,  iii,  34,  the  minimum  size  for  old  counties  was 
"20  miles  square".  By  an  amendment  adopted  in  1849,  "2O  miles 
square"  or  500  square  miles.  This  requirement  lapsed  in  Missouri  in 
1865,  but  since  1876  new  Texan  counties,  in  territory  not  already  ar- 
ganized,  must  be  square,  except  on  the  State  borders  (Tex.  Const. 
1876,  ix,  i). 

8  Cities  and  towns  may  not  be  divided  in  those  Ohio  counties  to 
which  the  area  restrictions  do  not  apply  (Const.  1851,  ii,  30)  nor  in 


54  TERRITORIAL  BASIS  OF  GOVERNMENT  [446 

Finally,  most  modern  of  all  these  direct  limitations  is  a 
Wyoming  provision,  in  1889,  supplementing  the  require- 
ment of  a  minimum  population,  with  that  of  a  minimum 
amount  of  taxable  property,  in  both  the  new  and  the  reduced 
counties.  The  contiguous  State  of  Idaho  has  since  supple- 
mented its  area  provision  in  this  way;  and  South  Carolina 
and  Oklahoma  have  imposed  this,  in  addition  to  all  three 
other  restrictions.1 

(b)  Indirect  limitations 

The  rules  affecting  the  manner  in  which  the  power  to 
create  new  counties  is  to  be  exercised  include  several  types 
of  provisions  with  which  we  have  already  become  acquainted 
—the  requirement  of  a  Referendum — of  an  extraordinary 
legislative  majority — of  general  legislation — and  also  a  few 
additional  rules,  of  which  the  most  important  is  an  obliga- 
tory division  of  the  debts  of  the  old  county. 

The  earliest  and  most  widely  diffused  rule  is  the  require- 
ment of  local  action,  in  the  shape  either  of  an  Initiative  peti- 
tion, a  Referendum,  or  both.  The  original  Tennessee  in- 
strument of  1796  contained,  in  addition  to  the  requirement 
of  a  minimum  area,  the  proviso  that  no  new  county  should 
be  formed  except  upon  the  petition  of  200  free  male  inhabi- 

any  South  Carolina  county  (Const.  1895,  vii,  14).  The  population  pro- 
visions of  Michigan  and  Minnesota  apply  only  to  the  erection  of  cities 
into  counties.  In  South  Dakota  (Const.  1889,  ix,  i)  townships  may  not 
be  divided;  it  is  not  clear  whether  the  words  "as  near  as  may  be" 
qualify  this  rule,  or  the  stated  minimum  area.  In  North  Dakota 
(Const.  1889,  167)  natural  boundaries  are  to  be  observed,  "  as  nearly 
as  may  be". 

1  Wyom.  Const.  1889,  xi,  3,  $2,000,000  for  new,  $3,000,000  for  old 
counties. 

Idaho  Am.  *  1898,  xviii,  4,  $1,000,000  for  both. 

S.  C.  Const.  1895,  vii,  3,  4,  $1,500,000  for  new,  $2,000,000  for  old 
counties. 

Okla.  Const.  1907,  xvii,  4,  $2,500,000  for  both. 


447]  THE  BOUNTY  55 

tants  within  the  proposed  boundaries.  In  1834  this  was 
changed  to  the  requirement  of  a  majority  Referendum  in 
that  part  of  any  old  county  proposed  to  be  taken,  to  form 
part  or  whole  of  a  new  county.  For  more  than  half  a  cen- 
tury Tennessee  found  no  imitators.  In  1848,  however, 
as  an  incident  in  the  extreme  democratic  movement  of  the 
time,  Illinois  required  a  majority  of  the  part,  and  in  addition 
a  majority  Referendum  of  the  entire  old  county.  Since 
then  the  movement  has  assumed  three  general  forms.  The 
latter  half  of  the  Illinois  idea — protection  only  to  the  old 
county — spread  rapidly  throughout  contiguous  States  to  the 
north  and  west — through  Michigan  and  Ohio,  to  Pennsyl- 
vania, for  a  time — and,  after  the  War,  even  to  Louisiana.1 
A  Referendum  only  of  the  segregated  section  of  the  old 
county,  on  the  other  hand,  instead  of  a  Referendum  of  the 
entire  old  county,  survived  in  Tennessee,  and  was  established 
after  the  War  in  several  other  Southern  States,  and  in  a  few 
Far  Western.2  And  the  full  Illinois  idea  of  a  double  protec- 

1  In  Wisconsin,  the  provision  applies,  rather  oddly,  only  to  counties 
actually  containing  an  area  of  900  square  miles  or  less;  in  Michigan, 
only  to  a  reduction  to  less  than  sixteen  surveyed  townships  (576  sq. 
m.),  or,  until  1908,  in  case  a  city  was  to  be  set  off  as  a  separate  county. 
In  Pennsylvania  it  applied  only  in  case  over  one-tenth  of  the  popula- 
tion was  to  be  cut  off. 
'References : 

Wise.  Const.  1848,  xiii,  7. 

Mich.  Const.  1850,  x,  2 ;  *  1908,  viii,  2. 

Ohio  Const.  1851,  ii,  30. 

Pa.  Am.  1857,  xii  (until  1873). 

Minn.  Const.  1857,  xi,  I,  2. 

Iowa  Const.  1857,  iii,  30. 

Mo.  Const.  1875,  ix,  3,  20,  23. 

La.  Const.  1879,  250;  1898,  278. 

N.  D.  Const.  1889,  168. 

S.  D.  Const.  1889,  ix,  i. 

5  Maryland,  as  early  as  1851,  guaranteed  to  a  special  district  of  one 
county  the  privilege  of  becoming  a  separate  county,  after  attaining  a 


56  TERRITORIAL  BASIS  OF  GOVERNMENT  [448 

tion — neither  the  advantages  of  union  to  be  lost,  nor  the  bur- 
dens of  independence  to  be  assumed,  except  by  consent  of 
the  electors  interested — has  been  imitated  in  a  few  scattered 
instances.1  In  occasional  late  instances  more  than  a  simple 
majority  is  required.2  In  almost  every  case  this  check  is  in 

certain  population,  through  a  majority  petition  followed  by  a  majority 
Referendum.  This  gave  way,  in  1864,  to  a  general  Referendum.  So 
West  Virginia,  Arkansas,  Wyoming,  Utah  and  Oklahoma.  Washington 
and  Kentucky  require  the  Initiative  petition  instead;  South  Carolina, 
both  petition  and  Referendum. 

In  case  parts  of  two  or  more  counties  are  combined  in  forming  a 
new  one  a  Referendum  is  usually  demanded  in  each  part,  as  in  Tenn- 
essee. In  West  Virginia,  however,  a  Referendum  only  of  the  pro- 
posed new  county  is  demanded.  Maryland  demands  the  consent  of  a 
majority  of  the  voters  in  the  whole  of  the  new  county  as  well  as  in 
each  part;  so  also  Wyoming,  by  virtue  of  the  provision  regarding 
municipal  corporations,  if  this  be  held  applicable;  doubtless,  however, 
affirmative  majorities  secured  in  all  the  parts  would  be  construed  as 
satisfying  the  general  requirement,  without  the  requirement  of  a  sec- 
ond election. 
References : 

Tenn.  Const.  1796,  ix,  4 ;  1834,  x,  4 ;  1870,  x,  4. 

Md.  Const.  1851,  viii;  1864,  x,  i;  1867,  xiii,  i. 

W.  Va.  Const.  1872,  ix,  8. 

Ark.  Const.  1874,  xiii,  2. 

Wash.  Const.  1889,  xi,  3. 

Wyom.  Const.  1889,  xii,  2. 

Ky.  Const.  1890,  65. 

Utah  Const.  1895,  xi,  3. 

S.  C.  Const.  1895,  vii,  i,  2. 

Okla.  Const.  1907,  xvii,  4. 

1  Nebraska   (Const.  1875,  x,  2,  3)   follows  Illinois   (Const.  1848,  vii, 
2,  4;  1870,  x,  2,  3)  in  requiring  a  petition  of  the  section  and  a  Refer- 
endum of  the  entire  old  county.     In  Ohio  (Const.  1851,  ii,  30),  where 
in  general  the  county  Referendum  prevails,  counties  containing  100,000 
inhabitants  may  be  divided  only  after  a  Referendum  in  both  sections. 
In  Mississippi   (Const.  1890,  260)  the  same  requirement  is  imposed  in 
the  case  of   all   counties,   and  in   Michigan,   of  late,   in   case   of  the 
separation  of  a  city-county  (*  Const.  1908,  viii,  2). 

2  Two-thirds   majority   in   Tennessee,   since   1870,   and   in   Louisiana 


449]  THE  COUNTY  57 

addition  to  one  or  more  of  the  direct  limitations  already 
noted. * 

The  requirement  of  an  extraordinary  Legislative  majority 
has  been  much  less  common.  It  originated  in  an  Alabama 
provision  of  1819,  whereby  county  lines,  in  territory  secured 
from  the  Indians,  or  by  cession,  should  not,  after  having 
once  been  established,  be  later  changed,  except  by  a  two- 
thirds  vote  of  the  Legislature.  In  1867  the  provision  was 
given  a  general  application  in  this  State,  and  in  the  year 
following  was  adopted  by  the  adjacent  States  of  Georgia 
and  Florida,  but  only  until  their  next  general  Constitutional 
revision.  Meanwhile,  however,  another  Gulf  State — Texas 
— had  entered  with  a  peculiar  provision  in  regard  to  area: 
the  prescribed  minimum  of  900  square  miles  applied  abso- 
lutely only  to  the  old  county;  a  two-thirds  Legislative  ma- 
jority was,  however,  required  to  create  new  counties  below 
this  figure.  In  1876  this  developed  into  a  general  require- 
ment of  a  two-thirds  majority,  in  addition,  as  in  Alabama, 
to  the  direct  limitations;  by  a  curious  reversal,  however, 
of  the  original  Alabama  provision,  it  does  not  apply  to  ter- 
ritory that  was  not,  in  1876,  already  organized  into  coun- 
ties. 2 

The  next  restriction  that  developed  was  one  designed  to 
remedy  the  injustice  of  the  common-law  rule  that,  where  the 

since  1898.  60  per  cent  in  Oklahoma.  Two-thirds,  following  a  petition 
of  one-third,  in  South  Carolina. 

It  should  be  noted  also  that  the  majority  of  legal  voters  required 
in  Washington  and  Kentucky,  for  the  Initiative  petition,  represents 
a  larger  figure,  as  well  as  a  more  difficult  process,  than  the  simple 
majority  of  those  voting  which  is  required  in  a  Referendum. 

1  Wisconsin  and  Utah  are  the  only  exceptions. 

2  Ala.  Const.  1819,  vi,  17;  1867,  ii,  2;  1875,  ii,  2',  1901,  39. 
Ga.  Const.  1868,  iii,  5    (until  1877). 

Fla.  Const,  xiv  (until  1885). 

Tex.  Const.  1845,  vii,  34;  1868,  xii,  24;  1876,  ix,  i. 


58  TERRITORIAL  BASIS  OF  GOVERNMENT  [450 

Legislature  makes  no  regulation,  "  the  old  corporation  owns 
all  the  public  property  within  her  new  limits,  and  is  respon- 
sible for  all  debts  contracted  by  her  before  the  act  of  separa- 
tion was  passed  ".  This  movement  originated,  like  most 
of  these  county  rules,  in  Tennessee  and  Illinois,  the  former 
State  requiring  in  1870  that  the  segregated  sections  should 
"  continue  liable  for  their  pro  rata  of  all  debts  contracted 
by  their  respective  counties  prior  to  the  separation,  and  be 
entitled  to  their  proportion  of  any  stocks  or  credits  belong- 
ing to  such  old  counties  " ;  while  Illinois,  in  the  same  year, 
provided  that  they  should  be  liable  for  their  "  proportion 
of  the  indebtedness  ",  merely.  A  similar  requirement  as  to 
debts  has  since  been  adopted  by  fifteen  other  Western  or 
Southern  States  (including  two  doubtful  cases  1),  of  which 
Louisiana  and  Oklahoma  are  the  only  ones  to  provide  also 
for  a  division  of  assets.  Most  of  these,  beginning  with 
Missouri  in  1875,  have  preferred  to  impose  the  liability 
upon  the  new  county  (which  may  be  composed  of  sections 
of  several  old  ones),2  and  two  of  the  later  States  have  de- 
fined the  rule  of  apportionment  with  precision.3 

1  North  Dakota  and  Idaho. 

*  Nebraska,  Texas,  Idaho  and  Kentucky  are  the  only  States  to  follow 
the  original  rule  in  this  respect. 

8  Nebraska,  Texas  and  Kentucky  follow  Illinois  in  providing  that  the 
section  shall  assume  "  its  proportion  of  the  indebtedness  ".  Missouri, 
Colorado  and  Idaho  speak  of  a  "  ratable  proportion ".  California, 
Louisiana  and  South  Carolina  use  the  term  "just";  Wyoming  and 
North  Dakota,  "  equitable  ". 

Florida  provides  that  "  Every  newly  established  county  shall  be  held 
liable  for  its  proportion  of  the  existing  liabilities  of  the  county  or 
counties  from  which  it  shall  be  formed,  rated  upon  the  basis  of  the 
assessed  value  of  the  property,  both  real  and  personal,  subject  to  taxa- 
tion within  the  territory  taken  from  any  county  or  counties." 

Washington,  to  the  requirement  of  a  "just  proportion",  adds  the 
words :  "  Provided,  That  in  such  accounting  neither  county  shall  be 
charged  with  any  debt  or  liability  then  existing,  incurred  in  the  purchase 
of  any  county  property  or  in  the  purchase  or  construction  of  any 


451]  THE  COUNTY  59 

A  provision  looking  toward  generality  of  action  in  the 
erection  of  new  counties  was  first  adopted  for  counties  by 
Pennsylvania  in  1873,  ancl  since  tnen  m  Minnesota  and  sev- 
eral Far  Western  States.  This  provision  has  usually  been 
identical  with,  or  included  in  the  terms  of,  a  provision  in  the 
same  State  affecting  corporations  or  municipal  corporations. 
Fresh  matter  is  included  in  the  Oklahoma  provision,  how- 
ever, and  in  several  States  the  location  of  the  two  provisions, 
as  well  as  the  circumstances  that  in  California  the  one  relat- 
ing to  counties  was  inserted  by  special  amendment  a  quarter 

county  buildings  then  in  use  or  under  construction,  which  shall  fall 
within  and  be  retained  by  the  county ;  Provided  further,  That  this  shall 
not  be  construed  to  affect  the  rights  of  creditors." 

Montana  provides  that  the  new  county  "shall  be  held  to  pay  its 
ratable  proportion  of  all  then  existing  liabilities  of  the  county  or  coun- 
ties from  .which  it  is  formed,  less  the  ratable  proportion  of  the  value 
of  the  county  buildings  and  property  of  the  county  or  counties  from 
which  it  is  formed." 

Oklahoma  does  not  in  terms  impose  a  liability,  but  requires  the 
Legislature  to  provide  for  ''.the  equitable  division  of  assets  and  lia- 
bilities." 

References : 

Tenn.  Const.  1870,  x,  4. 

111.  Const.  1870,  x,  3. 

Neb.  Const.  1875,  x,  3. 

Mo.  Const.  1875,  ix,  3. 

Colo.  Const.  1876,  xiv,  4. 

Tex.  Const.  1876,  ix,  I. 

Cal.  Const.  1879,  xi,  3. 

La.  Const.  1879,  252;  1898,  280. 

Fla.  Const.  1885,  viii,  3. 

Wyom.  Const.  1889,  xii,  2. 

Wash.  Const.  1889,  xi,  3. 

N.  D.  Const.  1889,  168. 

Mont.  Const.  1889,  xvi,  3. 

Idaho  Const.  1889,  xviii,  3. 

Ky.  Const.  1890,  65. 

S.  C.  Const.  1895,  vii,  6. 

Okla.  Const  1907,  xvii,  4. 


6o  TERRITORIAL  BASIS  OF  GOVERNMENT  [452 

of  a  century  after  that  relating  to  municipalities,  throws 
doubt  upon  the  applicability  to  counties  of  the  more  general 
provision. l  In  Pennsylvania  the  provision  replaced  a  pre- 
viously required  Referendum.  In  California  also,  the  Refer- 
endum provision  does  not  occur.  In  the  other  States,  how- 
ever, both  are  present. 2 

Quite  recently,  two  fresh  developments  have  occurred, 
both  in  connection  with  the  Referendum.  South  Carolina, 
in  1895,  provided  that  elections  upon  the  question  of  form- 
ing the  same  proposed  new  county  should  not  be  held 
oftener  than  once  in  four  years ;  this  idea  was  directly  sug- 
gested by  the  provision  regarding  the  location  of  county 
seats,  about  to  be  discussed,  but  finds  its  ultimate  origin  in 
provisions  limiting  the  frequency  of  Legislative  apportion- 

1  On  the  other  hand,  it  will  be  recalled  that  Louisiana  (Const.  1879, 
46;  1898,  48;  takes  care  expressly  to  exclude  the  organization  of 
parishes  from  the  operation  of  its  corporation  provision. 

*  In  Pennsylvania,  Minnesota  and  Utah,  special  legislation  is  for- 
bidden, fortified,  in  Pennsylvania,  by  the  prohibition  of  partial  repeal 
of  a  general  law,  and  in  Minnesota,  by  the  obligation  to  pass  general 
laws.  In  the  Dakotas,  Wyoming  and  Oklahoma  there  is  an  obligation 
to  pass  general  laws,  without  express  prohibition  of  special  legislation 
as  well;  in  California,  only  an  authorization  to  pass  general  laws. 

The  Utah  prohibition  applies  in  terms  only  to  the  separation  of  ter- 
ritory from  an  already  organized  county.  The  Oklahoma  requirement 
of  general  action  covers  not  merely  the  creation  of  new  counties  but 
"  the  equitable  division  of  assets  and  liabilities  and  the  original  location 
of  county  seats  in  such  new  counties  " — the  intent  doubtless  being  that 
a  single  act  shall  embrace  all  these  topics. 
References : 

Pa.  Const.  1873,  iii,  7. 

N.  D.  Const.  1889,  167. 

S.  D.  Const.  1889,  ix,  I. 

Wyom.  Const.  1889,  xii,  2. 

Minn.  *  Am.  1892,  iv,  33. 

Cal.  Am.  1894,  xi,  3. 

Utah  Const.  1895,  xi,  3. 

Okla.  Const.  rox)7,  xvii,  4. 


453]  THE  COUNTY  6l 

ment  or  Constitutional  revision.1  And  both  South  Carolina 
and  Oklahoma  provide  that  the  Referendum  shall  be  taken 
upon  more  than  the  single  question  of  boundary.2 

In  another,  less  direct  \vay,  also,  did  several  of  the  pre- 
ceding types  of  provisions  become  involved  with  the  loca- 
tion of  county  lines.  It  will  be  recalled  that  in  several 
States  the  new  county  line  was  not  permitted  to  be  drawn 
within  a  certain  number  of  miles  of  an  established  county 
seat.  What,  however,  was  to  prevent  the  Legislature  from 
removing  the  court  house  of  the  old  county  ?  Tennessee,  in 
1834,  met  this  situation  by  requiring  a  two-thirds  majority 
of  the  Legislature  to  effect  such  a  removal.  Illinois  next,  in 
1848,  requir  ed  instead  a  simple  Referendum  on  the  part  of 
the  county.  Tennessee,  then,  in  1870,  adopted  a  two-thirds 
Referendum,  in  addition  to  its  original  provision,  this  being 
the  only  instance  in  which  local  action  and  extraordinary 
Legislative  majority  are  coupled  in  connection  with  county 
lines;  while  Illinois,  in  the  same  year,  supplemented  its 
Referendum  requirement  by  provisions  limiting  the  fre- 
quency of  elections,  and  forbidding  special  legislation! 
Pennsylvania,  three  years  later,  contented  itself  with  the 
"  special  "  provision.  All  later  States  in  which  the  location 
of  the  county  seat  affects  the  determination  of  county  lines 
demand  a  Referendum  for  its  removal,  including  even 
Texas  and  Alabama,  where  the  extraordinary  Legislative 

1  S.  C.  Const.  1895,  vii,  2. 

2  In  South  Carolina,  the  question  of  county  seat  and  name ;  in  Okla- 
homa, "every  question"  (whatever  this  means — at  least,  questions  of 
county  seat  and  division  of  assets  and  liabilities). 

It  is  worth  noting  that  although  the  same  majority  is  required  for 
these  questions  as  for  the  separation  of  territory — two -thirds,  in  South 
Carolina,  and  60  per  cent  in  Oklahoma — this  majority  needs  to  be 
attained  only  in  the  proposed  county  as  a  whole — not  in  each  section 
separated  from  an  old  county.  (S.  C.  Const.  1895,  vii,  I,  2.  Okla. 
Const.  1907,  xvii,  4.) 


62  TERRITORIAL  BASIS  OF  GOVERNMENT  [454 

majority  would  be  more  consistent  with  the  general  policy 
in  regard  to  counties.  Most  of  the  States  demand  a  two- 
thirds  vote  in  the  Referendum.1  Most  limit  the  frequency 
of  elections.2  Most  forbid  special  legislation,3  and  a  few 
positively  demand  general  legislation  as  well.4  In  Okla- 
homa, where  the  required  general  legislation  is  written  into 
the  Constitution,  an  Initiative  petition  of  25  per  cent  of  the 
voters  calls  the  election,  and  a  petition  of  300  voters  places 
the  name  of  a  town,  city  or  place  upon  the  official  ballot.5 

1  Simple  majority  in  Illinois,  Arkansas  and  Alabama,  except  that  in 
Illinois,  since  1870,  a  three-fifths  vote  is  required  to  remove  the  county 
seat  away  from  the  center.     Simple  majority  in  Texas  to  remove  it 
from  a  point  more  than  five  miles  from  the  center  ar>  "  determined 
by  a  certificate  from  the  commissioner  of  the  central  land  office  ",  to 
a  point  within  this  radius.     Two-thirds  vote  required  in  Texas  to  re- 
move it  if  already  within  this  radius,  and  in  the  other  six  States  in 
all  cases. 

Oklahoma  provides  a  repeated  election  between  the  two  highest,  in 
case  no  place  receives  two-thirds. 

2  Not  oftener  than  once  in  ten  years  in  Illinois,  since  1870,  and  in 
Oklahoma;  five  years  in  Missouri  and  South  Carolina;  four  years  in 
California  and  Alabama;  no  limitation  in  Tennessee,  Kentucky,  Arkan- 
sas and  Texas. 

8  All  except  Tennessee,  Arkansas  and  South  Carolina. 

*  Missouri,  Texas,  Alabama  and  Oklahoma. 

5  Permanent  special  exceptions  occur  in  Tennessee  only. 

References  (not  including  States  where  similar  provisions,  by  fixing 
one  spot  in  each  county,  affect,  very  distantly,  legislative  control  over 
county  boundaries)  : 

Tenn.  Const.  1834,  x,  4;  1870,  x,  4. 

111.  Const.  1848,  vii,  5;  1870,  iv,  22;  x,  4. 

Pa.  Const.  1873,  "i,  7- 

Ark.  Const.  1874,  xiii,  3. 

Mo.  Const.  1875,  v,  S3 ;  ix,  2. 

Tex.  Const.   1876,  iii,  56;  ix,  2. 

Cal.  Const.  1879,  iv,  25;  xi,  2. 

Ky.  Const.  1890,  59,  64. 

S.  C.  Const.  1895,  vii,  8. 

Ala.  Const.  1901,  41,  104. 

Okla.  Const.  1907,  v,  46;  xvii,  6. 


455]  THE  COUNTY  63 

(c)  Prohibition 

We  have  already  seen  that  the  Alabama-Texas  rule,  re- 
quiring, in  place  of  a  Referendum,  an  extraordinary  Legis- 
lative majority  for  the  creation  of  new  counties,  existed  for 
a  time  in  Florida  and  Georgia.  In  Florida  the  provision  was 
abolished,  leaving  no  restriction  upon  counties  other  than 
the  carefully-drawn  rule  in  regard  to  division  of  liabilities. 
In  Georgia  a  development  in  the  opposite  direction  occurred, 
the  Constitution  of  1877  providing  that,  "  No  new  county 
shall  be  created."  In  1904,  however,  this  was  changed  to  a 
prescription  of  a  maximum  number  of  counties.1 

2.    CHANGES    OF    BOUNDARY    BETWEEN    EXISTING    COUNTIES 

In  New  York,  Michigan  and  West  Virginia  county  pro- 
visions are  applicable  only  in  the  process  of  creating  new 
counties.  In  the  remaining  thirty-three  States  in  which 
such  provisions  exist,  the  general  tendency,  since  the  middle 
of  the  century,  has  been  to  extend  their  application,  with 
such  modifications  as  the  case  demanded,  also  to  changes 
of  boundary  between  existing  counties.  As  early  as  1819, 
Alabama's  requirement  of  an  extraordinary  Legislative 
majority  (in  territory  subsequently  to  be  acquired)  referred 
to  alterations  of  boundary,  in  general.  Then  in  1838  the 
framers  of  the  instrument  under  which  Florida,  seven  years 
later,  was  admitted,  phrased  their  population  provision  in 
language  which  can  be  construed  to  refer  to  any  reduction 
of  an  existing  county.  Iowa,  in  1846,  adopted  an  area  pro- 
vision which,  in  terms,  applies  only  to  mere  changes  of 
boundary.  Finally,  beginning  with  a  generalization  of  the 
Referendum  by  Illinois,  in  1848,  and  of  the  area  provisions 
by  Indiana  and  Ohio  in  1851,  the  tendency  to  treat  the  two 

1  146  counties  (Ga.  Const.  1877,  xi,  I  par.  2;  *  Am.  1904). 
Between  1846  and  1857  a  similar  provision  existed — perhaps  through 
careless  drafting — in  Iowa.     (Const.  1846,  xi,  2). 


64  TERRITORIAL  BASIS  OF  GOVERNMENT  [456 

subjects  together  becomes  strongly  marked.  So  unequally, 
however,  has  it  operated,  that  only  in  fifteen  States  to-day 
are  the  requirements  substantially  the  same  for  the  two 
types  of  change.1  In  the  remaining  eighteen,  as  in  the  three 
already  mentioned,  differing  policies  have  been  pursued  in 
regard  to  the  two  topics.  Thus,  we  find  three  States  in 
which  only  one  comparatively  unimportant  provision  ap- 
plies to  mere  changes  of  boundary,  as  well  as  to  the  erection 
of  new  counties.2  We  have  eight  States  in  which  one  or 
more  important  provisions  are  thus  extended,  while  one  is 
not.5  We  have  a  group  of  seven,  finally,  in  which — what- 
ever be  the  situation  in  other  respects — we  have  provisions 
referring  to  mere  county  change  and  not  to  county  creation.4 
It  will  be  convenient  to  take  up  the  provisions  in  the 
same  order  as  before. 

XA  block  of  eight  contiguous  States:  Wisconsin,  Minnesota,  the 
Dakotas,  Iowa,  Missouri,  Kansas,  Oklahoma;  with  Utah  to  the  west, 
Louisiana  to  the  south,  Indiana,  Ohio  and  Maryland  to  the  east,  Florida 
and  South  Carolina  to  the  southeast. 

It  is  only,  however,  in  Wisconsin,  Iowa,  Kansas,  Indiana,  Maryland 
and  Florida  that  the  requirements  are  identically  the  same  for  the  two 
cases. 

2  The  debt  provision  in  Tennessee  and  California ;  the  provision  pro- 
hibiting special  legislation  in  Pennsylvania. 

3  Including  such  unaccountable  contrasts  as  those  between  Mississippi, 
in  which  the  area  provision  is  extended,  and  the  'Referendum  not,  and 
Nebraska  and   Illinois,  where  the  reverse  is  true;   between  Oregon, 
where  the  area  provision  is  extended  and  the  population  provision  not, 
and  Virginia,  where  the  reverse  is  true;  between  Arkansas,  where  the 
area  and  population  provision  are  extended,  and  the  Referendum  not; 
Wyoming,  where  the  Referendum  and  population  provisions  are  ex- 
tended,  the   property  provision  not;   Alabama,   where   the   area   and 
Legislative   majority   provision   are    extended,    the   population    provi- 
sion not. 

4  The  Referendum  in  Texas,  Idaho  and  Colorado,  and  (supplementing 
an  extended  Initiative  petition)   in  Kentucky;  prohibition  of   special 
legislation  in  Georgia,  Washington  and  New  Mexico. 


457]  THE  COUNTY  65 

(a)  Direct  limitations 

Iowa's  innovation  in  1846  was  to  simplify  the  already 
common  area  provision,  by  the  use  of  the  following  lan- 
guage :  "  No  new  county  shall  be  laid  off  hereafter,  nor  old 
county  reduced  to  less  contents  than  432  square  miles."  * 
Similar  language,  so  changed  as  not  to  prohibit,  in  terms, 
as  this  appears  to  do,  the  creation  of  new  counties,  has  been 
employed  since  by  about  half  of  the  States  which  have  newly 
adopted  the  provision,  while  ten  other  States,  including 
Iowa,  have  come  over  to  this  prevailing  form.  At  present 
the  following  solid  block  of  States :  Minnesota,  the  Dakotas, 
Iowa,  Missouri,  Kansas,  Oklahoma,  Texas,  Arkansas, 
Louisiana,  Mississippi,  Alabama,  with  Oregon  to  the  West, 
Indiana,  Ohio,  Maryland  and  South  Carolina  to  the  East, 
seventeen  in  all,  have  the  provision  with  extended  applica- 
tion ;  while  Illinois,  Kentucky,  Tennessee  and  the  two  Vir- 
ginias, with  Pennsylvania  to  the  east,  Nebraska  and  Idaho 
to  the  west,  eight  in  all,  limit  it  to  the  process  of  creating 
new  counties.2  Oklahoma  has  also  introduced  a  new  re- 
striction of  area,  in  addition  to  the  preceding,  in  the  shape 
of  a  prohibition  against  a  transfer  which  will  leave  the  re- 
duced county  smaller  than  the  one  augmented.3 

The  population  provision,  when  used  in  connection  with 
the  creation  of  new  counties  'before  the  War,  applied  to  the 
parent  county  in  six  States.  In  three  of  these  its  applica- 
tion was  from  the  beginning  extended  to  cover  any  change 
in  county  lines,4  and  the  other  three  States  came  in  after  the 
War.  5  On  the  other  hand,  in  only  four  States  in  which  the 

1  Iowa  Const  1846,  xi,  2  (until  1857). 

2  For  details  and  references,  vide  sec.  i  (a),  pp.  48-50,  supra. 
8  Okla.  Const.  1907,  xvii,  4. 

*In  Florida,  Virginia  and  Ohio.     In  Florida  and  Ohio,  however,  the 
language  is  ambiguous. 
5  Missouri,  Arkansas  and  Louisiana. 


66  TERRITORIAL  BASIS  OF  GOVERNMENT  [458 

provision  has  been  newly  introduced,  in  connection  with 
county  creations,  has  this  extension  been  made,  so  that 
the  general  application  now  appears  in  only  nine  out  of 
twenty  cases.  As  with  the  extension  or  non-extension  of 
the  area  provision,  it  is  difficult  to  assign  any  reason  for 
the  varying  practice  since  the  War,  other  than  that  the  first 
model  to  hand  has  usually  been  slavishly  imitated,  without 
any  attempt  to  analyze  its  meaning.1 

The  county  seat  provision  has  been  extended  only  in  its 
three  last  appearances ; 2  the  requirement  of  a  definite  shape 
not  at  all ;  the  recognition  of  administrative  or  natural  boun- 
daries in  four  States,3  and  the  property  provision  in  two,4 
where  the  tendency  to  generalize  is  strong. 

(b)  Indirect  limitations 
The  Referendum  has  been  very  freely  extended,  in  all  of 

1  References : 

Ratio  provision  in: 

Fla.  Const.  1838,  ix,  4  (until  the  War). 

Mo.  Const.  1865,  iv,  31;  1875,  ix,  3. 

Population  provision  (for  details,  vide  sec.  I  (a),  pp.  50-52,  supra)  : 

Va.  Const.  1850,  iv,  34;  1870,  v,  19;  1902,  61. 

Ohio  Const.  1851,  ii,  30. 

Ark.  Const.  1874,  xiii. 

La.  Const.  1879,  249;  1898,  277. 

N.  D.  Const.  1889,  167. 

Wyom.  Const.  1889,  xii,  2. 

S.  C.  Const.  1895,  vii,  4,  7- 

Okla.  Const.  1907,  xvii,  4. 

8  S.  C.  Const.  1895,  vii,  5,  7. 

Ala.  Const.  1901,  40. 

Okla.  Const.  1907,  xvii,  4. 

8  Ohio  Const  1851,  ii,  30   (under  a  possible  interpretation). 

N.  D.  Const.  1889,  167. 

S.  D.  Const.  1889,  ix,  i. 

Okla.  Const.  1895,  xvii,  4. 

4  S.  C.  Const.  1895,  vii. 

Okla.  Const.  1907,  xvii,  4,  7. 


459]  THE  BOUNTY  67 

its  three  forms.  Tennessee,  its  originator,  never  took  this 
step,  and  a  similar  conservatism  has  been  displayed  by 
Tennessee's  neighbors,  Arkansas  and  Mississippi,  by  West 
Virginia,  and  by  Michigan.  All  the  other  States,  however, 
since  its  real  vogue  began  in  1848,  have  given  it  a  general 
form, l  and  three  States,  beginning  with  Texas  and  Colo- 
rado in  1876,  have  applied  it  to  a  mere  change  of  boun- 
daries while  not  applying  it  to  the  creation  of  new  counties;2 
and  Kentucky,  having  already  the  requirement  of  a  petition 
from  the  segregated  section,  for  both  processes,  goes  back, 
for  mere  changes  of  boundary,  to  the  double  provision  of  its 
neighbor  Illinois.8 

In  another  way,  also,  the  Referendum  has  received  a  very 
natural  development.  If  the  voters  of  the  old  county,  or  of 
the  segregated  section,  or  of  both,  are  to  have  a  voice  in  the 
matter,  why  not  also  the  voters  of  the  county  asked  to  accept 
fresh  territory  ?  Illinois  and  Nebraska,  accordingly,  add,  to 
their  double  requirement,  a  Referendum  of  the  accepting 
county — three  petitions  or  Referenda,  in  all,  before  any 
transfer  can  be  made ;  Missouri  and  Texas  supplement  their 
Referenda  of  the  old  county — Utah  and  Oklahoma,  their 
Referenda  of  the  section — in  the  same  manner.  The  same 
effect  seems  also  to  be  attained  by  a  phraseology  originating 
with  Ohio  in  1851,  and  imitated  by  four  States  since:  "all 
laws  creating  new  counties,  changing  county  lines,  or  re- 
moving county  seats,  shall,  before  taking  effect,  be  sub- 
mitted to  the  electors  of  the  several  counties  to  be  affected 

1  In  South  Carolina,  only  the  two-thirds  Referendum — not  the  ante- 
cedent Initiative  petition)  is  extended.     Elsewhere  the  details  are  un- 
changed.   For  these  details  and  references,  vide  i  (b),  pp.  54-56,  supra. 

2  Texas    (Const.    1876,    ix)    and    Colorado    (Const.    1876,    xiv,   3)    a 
Referendum  of  the  county;  Idaho  (Const.  1889,  xviii,  3)  a  Referendum 
of  the  segregated  section. 

8  Ky.  Const.  1890,  64,  65. 


68  TERRITORIAL  BASIS  OF  GOVERNMENT  [460 

thereby,  at  the  next  general  election  after  the  passage 
thereof,  and  be  adopted  by  a  majority  of  all  the  electors  vot- 
ing at  such  election,  in  each  of  said  counties."  * 

We  have  seen  that  Alabama's  original  requirement  of  an 
extraordinary  Legislative  majority  was  the  earliest  provi- 
sion, so  far  as  it  went,  affecting  mere  changes  of  boundary. 
The  Texan  requirement  was  not  originally  so  extended, 
nor.  while  it  lasted,  was  that  of  Georgia.  Alabama,  how- 
ever, clung  to  the  extended  application  after  the  War ;  Flor- 
ida's provision,  while  it  continued  in  force,  also  applied  gen- 
erally, and  finally,  in  1876,  Texas  came  over.2 

The  debt  provision  is  a  little  different  from  the  preceding 
in  that  it  started  by  being  applicable  to  transfers  of  territory 
as  well  as  to  the  creation  of  new  counties;  indeed,  in  two 
States  it  is  doubtful  whether  it  is  not  applicable  to  transfers 
only,  and  it  is  only  in  two  late  instances  (Wyoming  and 
Montana)  that  it  is  not  applied  to  transfers.  In  two  States, 

1  Two-thirds  majority  is  required  in  Louisiana  for  this,  as  for  other 
purposes;  elsewhere  only  a  simple  majority,  even  in  Oklahoma.  In 
Minnesota,  Missouri  and  Texas  the  language  is  such  that  it  is  not 
clear  whether  a  majority  of  the  two  counties  voting  together  would 
not  suffice. 

References : 

111.  Const.  1848,  vii,  4;  1870,  x,  3. 

Neb.  Const.  1875,  x,  3. 

Mo.  Const.  1875,  ix,  4. 

Tex.  Const.  1876,  ix,  i. 

Utah  Const.  1895,  xi,  3. 

Okla.  Const.  1907,  xvii,  4. 

Ohio  Const.  1851,  ii,  30. 
Minn.  Const.  1857,  xi,  I. 
La.  Const.  1879,  250;  1898,  278. 
N.  D.  Const.  1889,  168. 
S.  D.  Const.  1889,  ix,  i. 

J  Ala.  Const  1819,  vi,  17;  1867,  ii,  2;  1875,  ii,  2;  1901,  39- 
Fla.  Const.  1868,  xiv   (until  1885). 
Tex.  Const.  1876,  ix,   i. 


461]  THE  COUNTY  69 

however,  a  curious  distinction  is  made.  Missouri,  the  first 
State  to  make  the  new  county  liable,  instead  of  the  segre- 
gated section,  retained  the  original  plan  in  case  of  transfer, 
and  this  example  was  followed  the  next  year  by  Colorado.1 

Similarly,  the  provisions  looking  towards  generality  of 
action  are  all  extended  to  include  mere  changes  in  boundary, 
except  in  the  late  instance  of  California.1  Georgia,  Wash- 
ington and  New  Mexico  prohibit  special  legislation  only  in 
regard  to  mere  change  of  boundary.2 

The  provisions  limiting  the  frequency  of  Referendum  elec- 
tions, on  the  other  hand,  or  requiring  the  simultaneous  sub- 
mission of  other  questions  to  the  people,  have  not  as  yet 
been  extended  to  other  matters  than  the  creation  of  new 
counties. 

(c)  Prohibition 

Finally,  that  absolute  prohibition  which,  in  Georgia,  in 
1877,  was  applied  to  the  creation  of  new  counties,  was 
provided  in  South  Carolina,  from  1868  to  1885,  as  to  other 
changes  of  boundary. 3 

3.    ABOLITION  OF  COUNTIES 

The  consolidation  of  counties  with  their  neighbors  has 
been  treated  as  distinct  from  a  mere  change  of  boundary 
in  six  Southern  States.4  Of  these,  West  Virginia,  from 

1  For  details  and  references,  vide  I  (b),  pp.  57-6o»  supra. 

JGa.  Const.  1877,  xi,  i. 

Wash.  Const.  1889,  ii,  28. 

*N.  Mex.  Const.  1911,  iv,  24. 

8S.  C.  Const  1868,  ii,  3  (until  1895). 

So  in  a  special  case  in  Missouri,  for  ten  years  (Am.  1855,  x,  until 
1865).  The  use  of  the  term  "constitutional  county"  differentiates  this 
from  other  provisional  definitions  of  counties  in  the  Constitutions. 

4  Note  in  this  connection  the  Florida  provision  already  cited,  p.  26, 
supra,  safeguarding  the  rights  of  creditors  in  the  case  of  the  abolition 
of  any  municipality. 


70  TERRITORIAL  BASIS  OF  GOVERNMENT  [462 

1862  till  1872,  and  Kentucky  and  South  Carolina,  recently, 
seem  to  have  regarded  such  consolidations  as,  within  certain 
limits,  rather  desirable;  Georgia,  Louisiana  and  Mississippi, 
on  the  other  hand,  as  at  best  a  disagreeable  necessity. 

West  Virginia  had  a  saving  clause,  as  against  all  provi- 
sions, permitting  the  Legislature  to  merge  with  its  neighbor 
any  county  having  a  population  of  less  than  4,000  whites 
Kentucky  has  a  saving  clause,  as  against  its  area  and  county 
seat  provisions  only,  permitting  a  merger  of  any  county. 
South  Carolina,  which  normally  demands  a  two-thirds 
Referendum  in  the  section  proposed  to  be  annexed,  requires, 
in  case  of  complete  merger,  a  majority  Referendum  in  both 
the  annexed  and  in  the  absorbing  county.1 

Georgia,  on  the  other  hand,  with  no  Referendum  require- 
ment in  general,  demanded  one,  in  1868,  in  a  county  pro- 
posed to  be  merged,  and  also  extended  its  requirement  of  a 
two-thirds  Legislative  majority  to  cover  this  case;  in  1877, 
the  extraordinary  majority  in  the  Legislature  was  dropped, 
but  a  two-thirds  Referendum  demanded  in  the  county. 
Similarly,  Louisiana,  since  1879,  has  supplemented  its 
already  generous  Referenda  requirements  by  demanding  in 
the  case  of  a  parish  proposed  to  be  totally  merged  with  an- 
other, a  two-thirds  majority  of  its  voters;  rather  curiously, 
however,  when  in  1898  this  figure  was  demanded  for  Refer- 
enda in  general,  a  simple  majority  was  retained  for  the 
parish  absorbing  a  complete  old  parish.  Finally,  Mississippi 
has  latterly  imposed  a  majority  Referendum  requirement  for 
the  creation  and  for  the  merger  of  counties  (not  for  mere 
changes  of  boundary)  ;  and  in  the  case  of  merger  has  im- 

1W.  Va.  Const.  1862,  vii,  12  (until  1872). 

Ky.  Const.  1890,  63. 

S.  C.  Const.  1895,  vii,  10. 


463]  THE  COUNTY  ?1 

posed  it  upon  both  counties  proposed  to  be  consolidated; 
whether  voting  separately  or  together,  is  not  clear.1 

When  one  is  tempted  to  revile  the  framers  of  Constitu- 
tional instruments  for  the  blind  way  in  which  they  incor- 
porate ready-made  provisions,  one  turns  to  provisions  such 
as  the  above,  and  wonders  how  much  these  States  have 
gained  by  their  attempts  at  originality.  Can  conditions  in 
these  six  States  be  so  widely  different,  as  to  demand  such 
wide  variety  of  treatment  ?  2 

4.  SUMMARY 

These  varying  requirements  show  how  difficult,  has  been 
the  problem,  in  growing  communities,  of  adjusting  th* 
county  to  its  double  function  as  judicial  division,  and  as  unit 
of  representation  in  the  Legislature,  The  line  between  the 
control  that  the  Legislature  must  retain,  in  order  that  the 
system  may  be  sufficiently  elastic,  and  the  control  of  which  it 
must  be  deprived,  lest  it  taint  the  fountain  of  its  own  being, 
has  been  exceedingly  difficult  to  draw  in  practice.  The 
absence  of  any  New  England  provisions  is  due  to  the  limited 
use  there  made  of  the  county  for  representative  purposes. 
For  reasons  which  will  appear  more  clearly  later,  the  writer 
believes  that  the  best  thing  to  do  with  county  lines  to-day 
is  to  fix  them,  as  they  now  are,  in  the  Constitutions.  If  they 
must  be  changed,  Constitutional  amendment  is  a  very 
proper  process.  Our  territory  is  now  so  widely  settled,  how- 
ever, and  these  little  divisions,  in  these  days  of  improved 

*Ga.  Const.  1868,  iii,  5;  1877,  xi,  i. 

La.  Const.  1879,  251;  1898,  279. 

Miss.  Const.  1890,  271. 

2  The  use  of  the  county  as  a  unit  of  representation  in  a  legislative 
house  of  limited  size  (cf.  chs.  vii  and  viii,  infra)  often  affects  the 
possible  total  number  of  counties.  So  particularly  by  Del.  Const.  1776, 
4;  Conn.  Am.  1828,  i,  ii;  1901,  xxxi;  Md.  Am.  1837,  2,  3;  Ga.  Am. 
1843,  i,  3,  7;  Iowa  Am.  1904,  iii,  35. 


72  TERRITORIAL  BASIS  OF  GOVERNMENT  [464 

means  of  communication,  are  at  best  so  badly  adapted  to  the 
prime  needs  of  administrative  organization,  that  few  changes 
would  seem  to  be  called  for.  We  already  virtually  regard 
the  gridironed  division  of  the  State  into  counties  as  the  con- 
ventional "  pattern  "  of  a  cloth  which  we  then  cut  to  fit. 
In  order  to  meet  the  growth  of  the  body  politic,  we  have 
frequently  to  patch  and  piece,  but  it  is  confusion  worse  con- 
founded if  the  pattern  also  is  shifting. 


CHAPTER  IV 
URBAN  DISTRICTS 

I.  THE  URBAN  DISTRICT  AS  A  WHOLE 

THE  urban  district  may  be  termed  the  natural  enemy  of 
the  county.  Pretty  clearly  and  pretty  uniformly  the  ideal 
has  been  kept  in  view  of  making  county  divisions  the  basis  of 
all  the  rest — the  unit  to  be  compounded  in  making  larger, 
to  be  subdivided  in  making  smaller,  equally  uniform  divi- 
sions. Orderly  development  along  these  lines  has,  how- 
ever, been  sadly  interfered  with  by  the  necessity  of  making 
special  provision  for  cities,  towns,  villages  or  boroughs — 
products  of  a  population  which  refuses  to  distribute  itself 
evenly  over  the  surface  of  the  State,  heaping  itself  up, 
instead,  into  local  centers.  These  congested  spots  do  not 
lend  themselves  to  uniform  treatment  even  among  them- 
selves, and,  exercising  a  social  pressure  too  strong  to  be 
withstood,  play  ducks  and  drakes  with  any  attempt  to  main- 
tain State-wide  symmetry  of  organization.  Where  the 
social  unit  has  most  nearly  conquered  the  county,  the  great- 
est degree  of  symmetry  has  been  attained.  The  New  Eng- 
land town,  stronger  by  reason  of  its  greater  antiquity  than 
the  county  there,  extended  its  jurisdiction  over  outlying  ter- 
ritory until  it  met  its  neighbor  town,  and  rural-urban  areas 
were  formed  which,  in  New  England  and  adjacent  States, 
were  for  a  time  the  units  of  which  counties  were  merely  an 
aggregate;  transplanted  as  "townships"  by  the  surveying 
instruments  of  the  Federal  land  office,  they  became  in 
numerous  Western  States  uniform  political  subdivisions  of 
counties.  But  alike  in  "  town  "  and  "  township  ",  and  in 
States  where  neither  existed,  strictly  urban  districts  have 
continued  to  emerge.  We  have  seen  how  few  have  been 

465]  73 


74  TERRITORIAL  BASIS  OF  GOVERNMENT  [466 

the  Constitutional  provisions  requiring  even  that  they  shall 
not  be  intersected  by  county  lines;  similarly  no  consistent 
policy  has  been  followed  in  regard  to  the  adjustment  of 
urban  lines  to  those  of  the  proper  subdivisions  of  counties. 
While  this  question  of  the  adjustment  of  urban  to  other 
boundaries  is  perhaps  wisely  left  to  the  good  sense  of  Legis- 
latures to  meet,  the  mere  fact  that  these  constantly-expand- 
ing urban  areas  are  superimposed  upon  a  scheme  of  division 
originally  designed  by  rural  representatives  for  a  predomi- 
nantly rural  population,  is  a  striking  instance  of  how  far  our 
system  of  political  organization  lags  behind  the  real  needs 
of  the  present. 

A  few  steps  in  the  direction  of  removing  cities  from  their 
unnatural  inclusion  in  counties  have  indeed  been  taken. 
New  York  City,  although  not  by  Constitutional  provision, 
has  always  been  organized  as  one  or  more  complete  coun- 
ties, except  for  a  brief  period  after  consolidation  in  1897. 
The  Michigan  and  Minnesota  provisions  of  the  5OJs,  au- 
thorizing the  erection  of  cities  of  a  certain  size  into  separ- 
ate counties  have  already  been  mentioned  as  exceptions 
to  the  general  rules  for  area  in  these  States.  Missouri, 
in  1875,  adopted  a  similar  rule  for  cities  of  100,000  inhabi- 
tants (dropping  even  the  name  of  county).  California, 
in  1879,  authorized  the  complete  merger,  under  a  single 
charter,  of  any  city  and  county.  Colorado,  in  1902,  effected 
by  Constitutional  process  such  a  merger  for  Denver.  And 
in  several  other  States  the  absence  of  area  provisions,  or 
(in  Ohio)  its  modification,  permits  a  similar  degree  of 
urban  independence.1  It  cannot  be  said  even  of  these  pro- 

1  Mich.  Const  1850.  x,  2. 
Ohio  Const.  1851,  ii,  30. 
Minn.  Const.  1857,  xi,  2. 
Mo.  Const.  1875,  ix,  15,  20-23. 
Cal.  Const.  1879,  xi,  7. 
Colo.  Am.  1902. 


467]  URBAN  DISTRICTS  y$ 

visions,  however,  wise  and  significant  though  from  some 
points  of  view  they  are,  that  they  contribute  at  all  to  the 
much-needed  simplification  of  our  system  of  local  divisions. 
It  was  not  until  1897,  following  the  supersession  of  a 
long  antiquated  Delaware  instrument,  that  cities,  as  such, 
were  mentioned  in  the  Constitutions  of  every  State.  The 
real  turning-point  was  the  Mexican  War.  Prior  to  the  War 
of  1812,  cities  were  mentioned,  as  general  phenomena,  only 
in  Virginia  and  Pennsylvania,  and  in  the  Vermont  instru- 
ment, closely  modeled  upon  the  latter.1  In  the  interval  from 
this  to  the  Mexican  War,  they  made  their  appearance  in 
Georgia,  and  the  four  States  due  west,  in  New  York  and 
New  Jersey,  Maine,  Massachusetts  and  Rhode  Island,  and 
in  Michigan,2  but  were  still  unmentioned  in  a  majority  of 
the  instruments.  Beginning  with  Wisconsin  and  Illinois, 
however,  in  1848,  they  are  mentioned  in  the  original  in- 
struments of  all  newly-admitted  States,  and  in  the  first  com- 
plete new  instrument  adopted  by  the  others.  Reconstruction 
facilitated  this  change  in  the  South,  and  Connecticut  and 
New  Hampshire  amendments  in  1876  and  1877  ma-de  the 
recognition  universal  outside  of  Delaware.  In  something 
over  half  the  States  other  urban  districts — village,  borough,3 
hamlet,  or  strictly  urban  "  town  " — have  been  mentioned  at 
the  same  time  with  cities.  In  a  dozen  instances,  however, 
principally  where  the  rural  "  town  "  is  strongest,  they  have 

1  Particular  cities  (New  York  City  and  Albany,  N.  Y.,  Annapolis, 
Md.,  and  New  Orleans,  La.)  were  mentioned  in  three  other  States. 
The  surviving  charters  of  Connecticut  and  Rhode  Island  also  author- 
ized the  representation  of  "towns,  cities  or  places." 

8  Miss.  1817;  Ga.  1818;  Ala.  1819;  La.  1845;  Tex.  1845;  N.  Y.  and 
Mass.  1821;  Me.  1834;  R.  I.  1842;  N.  J.  1844;  Mich.  1835. 

8  The  "  borough  "  is  here  treated,  for  convenience'  sake,  as  a  strictly 
urban  district.  This  is  not  uniformly  the  case. 


76  TERRITORIAL  BASIS  OF  GOVERNMENT 

been  mentioned  later,  or  not  at  all ; l  while  in  seven  States 
admitted  prior  to  the  Mexican  War,  "  towns  "  are  men- 
tioned earlier  than  cities;  doubtless  with  a  general  meaning.2 

1  In  New  York,  first  in  1846 ;  in  Connecticut  in  1877 ;  in  the  other 
New  England  States  (except  Vermont,  under  the  Pennsylvania  influ- 
ence) and  in  New  Jersey,  Delaware  and  Maryland,  not  at  all. 

In  Georgia  first  in  1868;  in  Minnesota,  in  *  1881. 

2Ky.  1799;  Ohio  1802;  Ind.  1816;  111.  1818;  Tenn.  1834;  Ark.  1836; 
Fla.  1838. 

Particular  towns  (Baltimore,  Md.,  six  small  towns  in  N.  C,  Charles- 
ton, S.  C.,  Savannah  and  Sunbury,  Ga.)  are  also  mentioned  in  earliet 
instruments  of  four  States. 

Virginia  (Const.  1902,  116)  is  the  only  State  to  distinguish  sharply,, 
on  the  basis  of  a  population  greater  or  less  than  5,000,  between  "cities" 
and  "towns".  Cf.  also  Mass.  Am.  1821,  ii;  Ky.  Const.  1890,  156. 

The  term  "  town  "  was  more  commonly  employed  before  the  Mexi- 
can War  than  any  other.  Indiana,  Kentucky,  Tennessee,  Mississippi, 
Louisiana  and  Florida  still  use  no  other  term  to  describe  urban  dis- 
tricts other  than  cities;  so  the  later  instances  of  Oregon,  Georgia. 
Iowa  and  Montana.  Pennsylvania  always  had  (in  addition  to  town- 
ships) "  towns "  and  "  boroughs  " ;  Virginia,  boroughs  alone  until 
1830;  then  boroughs  and  towns  until  1850;  then  towns  alone  until  the 
War;  since  1870,  towns  and  villages;  the  Pennsylvania  borough  was 
copied  by  Vermont;  this  may  help  to  account  for  the  use  of  this  term 
by  Connecticut,  a  hundred  years  later. 

The  first  appearance  of  "  village "  is  in  Illinois,  1818,  in  connection 
with  "  town  ".  New  York,  having  rural  "  towns  ",  used  "  village  " 
in  1846  to  characterize  strictly  urban  districts,  and  Michigan,  four 
years  later,  changed  from  "  town "  to  "  village ".  Much  more  usual, 
however,  since  the  Mexican  War,  has  been  the  continuous  use  of  both 
"town"  and  "village"  (so  Wise,  Kans.,  Nev.,  the  Carolinas,  Colo., 
and  all  the  States  newly  admitted  since),  or  the  addition  of  "village" 
where  "town"  alone  was  originally  mentioned  (so  Ohio,  Ala.,  Ark., 
Tex.,  Va.,  W.  Va.,  Mo.),  or  even  of  "town"  where  "village"  was 
originally  mentioned  (so  Nebraska).  California  starting  with  "town" 
and  "  village  "  reverted  in  1879  to  "  town  "  only,  while  Minnesota,  start- 
ing in  the  same  way,  reverted  in  1892  to  "  village  ". 

Illinois,  from  1818  till  1870,  spoke  of  "hamlets"  in  addition  to 
"  towns "  and  "  villages " ;  this  term  was  revived  in  an  Ohio  amend- 
ment of  1905. 


469]  URBAN  DISTRICTS  jj 

i.  Direct  limitations 

The  only  direct  limitation  upon  the  result  to  be  attained 
in  the  formation  of  urban  districts  is  a  provision  which 
existed  for  ten  years  in  Missouri,  forbidding  any  city  to  be 
incorporated  with  less  than  5,000  permanent  inhabitants.1 

2.  Extraordinary  Legislative  majority.    Deferred  action. 

Virginia,  recently,  has  revived  the  extraordinary  Legis- 
lative majority,2  and  New  York  has  introduced  a  rule,  re- 
quiring the  submission  of  special  city  acts  to  local  authori- 
ties, which  may  be  considered  a  modification  of  the  deferred 
action  rule  elsewhere  applied  to  corporations  or  to  all  special 
legislation.8 

3.  General  legislation 

'Of  provisions  encouraging  general  treatment  of  urban 
districts,  there  has  been  a  great  mass,  the  discussion  of 

1  Mo.  Const.  1865,  viii,  5  (until  1875). 

In  Rhode  Island  (Const.  1842,  v,  i)  the  combined  number  of  towns 
and  cities  may  not  exceed  72. 

Provisions  in  Massachusetts  (Am.  1821,  ii)  and  Pennsylvania  (Const. 
1873,  xv,  i),  permitting  city  governments  to  be  organized  in  towns 
or  boroughs  of  a  certain  population,  would  appear  to  have  no  relation 
to  questions  of  boundary. 

8  Two-thirds  of  the  members  elected  to  each  house  are  required  for 
special  legislation  in  regard  to  the  organization  or  government  of 
cities  and  towns  (in  addition  to  the  committee  procedure  required 
for  all  special  legislation).  Va.  Const.  1902,  117.  Cf.  ch.  ii,  sec.  i  (a), 
p.  25,  supra. 

8  Three  classes  of  cities  are  defined,  by  population.  A  bill  relating 
to  the  property,  affairs  or  government,  (since  1907,  "affairs  of  gov- 
ernment") or  the  several  departments,  of  less  than  all  the  cities  of  a 
class,  must  be  given  a  public  hearing  in  every  city  to  which  it  relates, 
and  must  also  be  submitted  to  the  mayor  and  legislative  body— or,  in 
cities  of  the  first  class,  unless  the  Legislature  otherwise  provides,  to  the 
mayor  only.  Lacking  local  approval  within  fifteen  days,  it  must  then 
be  passed  a  second  time  by  the  Legislature,  before  going  to  the  Gov- 
ernor. N.  Y.  Const.  1894,  xii,  2;  *  Am.  1907. 

Cf.  ch.  ii,  sees,  i  (b),  2  (b),  pp.  25,  35,  supra. 


78  TERRITORIAL  BASIS  OF  GOVERNMENT  [470 

which  presents  considerable  difficulties,  owing,  in  part,  to 
the  presence  in  one  and  the  same  instrument  of  provisions 
relating  to  "  municipal  corporations,"  as  well  as  to  urban 
districts  expressly;  and,  in  part,  to  the  difficulty  in  deter- 
mining whether  provisions  relating  in  some  way  to  urban 
districts  relate  in  particular  to  their  boundaries.  We  may 
introduce  partial  order  into  this  chaos  by  assembling,  first, 
the  few  cases  in  which  the  application  of  corporation  provi- 
sions to  urban  districts  has  been  expressly  limited.  Then, 
bearing  in  mind  that  our  purpose  is  to  trace  tendencies  and 
technical  development,  rather  than  to  provide  a  working 
manual  for  the  corporation  lawyer,  we  shall  consider  separ- 
ately the  three  broad  classes  into  which  the  States,  from  the 
point  of  view  of  municipal  corporations  as  such,  are  divided : 
States,  that  is  to  say,  in  which  no  generalizing  provision 
exists ;  States  in  which  there  is  only  an  authorization  or  an 
obligation  to  pass  general  municipal  corporation  laws; 
States  in  which  special  legislation  affecting  municipal  incor- 
poration is  positively  forbidden.1  Within  each  of  these 
classes  we  shall  see  what  express  provision  has  been  made 
for  urban  districts;  provision  which,  if  it  exists,  and  if  it 
makes  any  change  at  all,  always  makes  the  "  municipal  " 
or  unqualified  "  corporation "  rule  somewhat  more  strin- 
gent. 

(a)  Express  exceptions  to  existing  incorporation  provisions 
Only  five  such  have  been  found.  Missouri,  for  ten  years, 
excepted  cities  from  its  prohibition  of  special  incorporation, 
providing  population  and  Referendum  requirements  instead. 
Wisconsin,  for  twenty  years,  and  Minnesota,  for  about  ten, 
excepted  cities,  providing  no  substitute.  Louisiana,  for 
about  twenty  years,  excepted  New  Orleans,  this  exception 
being  merged,  after  1898,  into  a  general  exception  of  all 

1  Fide  ch.  ii,  sec.  i    (c),  pp.  26-29,  supra. 


471  ]  URBAN  DISTRICTS  79 

municipal  corporations  having  a  certain  population.  Ala- 
bama, in  1901,  very  sensibly  provided  that  the  prohibition 
upon  changing  charters  should  not  prevent  the  Legislature 
from  "  altering  or  rearranging  the  boundaries  of  any  city, 
town  or  village  ".1 

(b)  No  provision  affecting  municipal  incorporations 

In  four  out  of  the  fifteen  States  in  which  no  effort  has 
been  made  to  promote  a  generalized  treatment  of  municipal 
incorporations,  broadly,  this  effort  has  been  made  in  the 
case  of  urban  districts  in  particular. 

Virginia,  in  1870,  required  the  passage  of  general  laws 
for  the  organization  of  cities,  with  the  timid  addition 
(copied  from  New  York's  private  corporation  rule)  that 
no  special  act  should  be  passed  "  except  in  cases  where,  in 
the  judgment  of  the  General  Assembly,  the  object  of  such 
act  cannot  be  attained  by  general  laws  ".  This  prohibition 
was  changed  in  1902  by  being  extended  to  towns;  by  being 
made  absolute,  so  far  as  regards  "  the  extension  and  the 
contraction,  from  time  to  time,  of  the  corporate  limits  of 
cities  and  towns  " ;  and  by  being  made  absolute,  as  against 
an  ordinary  Legislative  majority,  in  all  cases.2  Texas,  in 
1874,  adopted  a  carelessly-phrased  provision  which,  two 
years  later,  became  a  prohibition  upon  special  legislation 
incorporating  cities,  towns  or  villages  or  changing  their 
charters;  cities  having  a  population  of  10,000  or  over,  how- 
ever, are  excepted.3  Colorado  and  Idaho  merely  require  the 

1  Mo.  Const.  1865,  viii,  5  (until  1875). 
Wise.  Am.  *  1871,  iv,  31  (until  1892). 
La.  Const.  1879,  46  (until  1898). 
Minn.  Am.  *  1881,  iv,  33  (until  1892). 
Ala.  Const.  1901,  104,  par.  18. 

2  Va.   Const.  1870,  vi,  20;   1902,  117,  126.     An  extraordinary  Legis- 
lative majority  may,  however,  pass  special  laws  organising  cities  and 
towns. 

8  Tex.  Am.  *  1874;  xii,  40;  Const.  1876,  iii,  56;  xi,  4,  5. 


go  TERRITORIAL  BASIS  OF  GOVERNMENT  [472 

Legislature  to  provide  by  general  law  for  the  organization 
(in  the  latter  State  also  for  the  incorporation)  of  cities  and 
towns,  without,  however,  appearing  actually  to  prohibit  their 
special  creation.1 

(c)  Mere  authorization  or  obligation  to  enact  general  muni- 

cipal incorporation  laws 

Of  the  eight  States  included  under  this  head,2  four — North 
Dakota,  Wyoming,  South  Carolina  and  New  Mexico —  ex- 
pressly prohibit  special  legislation  incorporating  or  chang- 
ing the  charters  of  cities,  towns  or  villages ;  and  New  York 
prohibits  special  legislation  merely  incorporating  villages.3 

(d)  Prohibition  of  special  legislation  incorporating  muni- 

cipalities 

In  four  of  the  numerous  States  in  which  municipalities 
may  not  be  incorporated  by  special  act,  no  similar  provi- 
sion affecting  urban  districts  as  such  has  been  made.4  In 
seven  of  them  (surviving  cases),  merely  an  obligation  to 
provide  for  the  organization  of  urban  districts  under  gen- 
eral law  has  been  added.6  In  the  remaining  fourteen,  the 

1  Colo,  Const.  1876,  xiv,  13. 
Idaho  Const.  1889,  xii,  i. 

2  Vide  p.  27,  note  i,  supra. 

*  S.  C.  Const.  1895,  iii,  34. 

N.  D.  Const.  1889,  69,  par.  33. 

Wyom.  Const.  1889,  iii,  27. 

N.  Y.  Am.  1874,  iii,  18;  Const.  1894  iii,  18. 

*N.  Mex.  Const.  1911,  iv,  24. 

Nevada,  also  (Const.  1864,  viii,  8),  supplements  a  mere  authorization 
to  enact  general  corporation  laws,  by  an  obligation  to  provide  for  the 
organization  of  cities  and  towns  by  general  laws. 

*  Indiana,  Tennessee,  New  Jersey,  Louisiana. 

6  Mississippi  has  such  an  obligation,  for  municipal  corporations  in 
general ;  the  other  States  have  not. 

California  and  Washington  mention  "  incorporation "  as  well  as 
"  organization  " ;  Michigan,  "  incorporation  "  only.  Mississippi,  in- 


473]  URBAN  DISTRICTS  8l 

prohibition  has  been  expressly  extended  to  urban  districts. 
In  these  fourteen  are  included  five  States  in  which  the 
"mild  "  general  rule  (not  applicable  to  change  of  charter) 
prevails ;  in  four  of  these,  the  more  stringent  rule  has  been 
adopted  for  urban  districts.1 

stead  of  either  "  organization  "  or  "  incorporation  "  mentions  charter- 
ing and  amending  charters. 

The  districts  affected  are  in  Ohio,  Nebraska  (until  1875),  and  Ar- 
kansas (until  1874),  "cities  and  incorporated  villages";  in  Kansas, 
"  cities,  towns  and  villages " ;  in  Arkansas  since  1874,  "  cities  and  in- 
corporated towns " ;  in  Missouri,  California,  Washington,  Keptucky 
and  Mississippi,  "  cities  and  towns ".  In  Michigan,  there  is  to  be  a 
general  law  for  "  cities  ",  and  another  for  "  villages  ". 
References : 

Ohio  Const.  1851,  xiii,  6. 

Kans.  Const.  1859,  xii,  5. 

Neb.  Const.  1866,  "Corp.",  4  (until  1875). 

Ark.  Const.  1868,  v,  49;  1874,  xii,  3. 

Cal.  Const.  1879,  xi,  6,  7. 

Ky.   Const.  1890,   156. 

Miss.  Const.  1890,  88. 

*  Mich.  Const.  1908,  viii,  20. 

1 "  Mild "  rule  repeated  ("incorporation"  forbidden)  in  Iowa;  strin- 
gent rule  newly  imposed  (incorporation  or  change  of  charter  for- 
bidden) in  West  Virginia,  Utah,  Oklahoma  and  Arizona. 

In  the  remaining  nine  States,  in  which  the  stringent  rule  already 
exists  for  municipal  corporations  in  general,  "  incorporating  or  chang- 
ing the  charters "  of  urban  districts  is  usually  forbidden.  Alabama, 
however,  forbids  merely  "  incorporating  "  these  districts ;  so  Minnesota 
until  1892,  since  when,  "  incorporating,  erecting,  or  changing  the  lines  " ; 
and  Pennsylvania,  for  boroughs  only,  forbids  erecting  or  changing 
limits. 

The  districts  affected  are,  in  Iowa,  "  cities  and  towns  " ;  in  Illinois, 
Missouri,  Nebraska,  South  Dakota,  Utah,  Alabama,  Oklahoma  and  Ari- 
zona, "  cities,  towns  and  villages  " ;  in  West  Virginia,  cities,  towns  and 
villages  containing  a  population  of  less  than  2,000;  in  Pennsylvania, 
44  cities  and  villages ",  and  boroughs ;  in  Washington,  "  towns  and  vil- 
lages ".  The  Wisconsin  and  Minnesota  provisions  at  first  applied  only 
to  "  towns  and  villages,"  cities  being  expressly  excepted  from  the  general 
rule ;  in  1892,  however,  Wisconsin  cities  were  brought  within  the  town 
and  village  rule,  and  the  Minnesota  provision  was  made  to  apply  to 
"  cities  and  villages." 


82  TERRITORIAL  BASIS  OF  GOVERNMENT  [474 

Finally,  for  the  sake  of  completeness,  it  may  be  added 
that  the  various  interpreting  rules,  designed  to  prevent 
evasions  of  the  preceding,  have  occasionally  been  made  ex- 
pressly applicable  to  urban  districts.  So  the  rule  as  to  the 
uniform  operation  of  the  law,1  and  the  Pennsylvania  rule 
as  to  the  partial  repeal  of  a  general  law.2  Classification  pro- 
visions, originating  as  a  license,  applied  to  corporations  in 
general,  were  developed  into  a  safeguard,  in  connection 
with  urban  districts,  before  they  were  applied  for  this  pur- 
pose to  municipal  corporations  in  general.3 

References : 

Iowa  Const.  1857,  iii,  30. 
W.  Va.  Const.  1872,  vi,  39. 
Utah  Const.  1895,  vi,  26. 
Okla.  Const.  1907,  v,  146. 

*  Ariz.  Const.  1911,  iv,  2,  19,  par.  17. 

111.  Const.   1870,  iv,  22. 

Wise.  *  Am.  1871,  iv,  31 ;  1892,  iv,  31. 

Pa.  Const.  1873,  iii,  7. 

Neb.  Const.  1875,  iii,  15. 

Mo.  Const.  1875,  iv,  53;  ix,  7. 

Minn.  *  Am.  1881,  iv,  33 ;  Am.  1892,  iv,  33. 

Wash.  Const.  1889,  ii,  28,  par.  8 ;  xi,  10. 

S.  D.  Const.  1889,  iii,  23,  par.  5. 

Ala.  Const.  1901,  104  par.  5. 

1  Wise.  *  Am.  1871,  iv,  31,  32 ;  Am.  1892,  iv,  31. 

Minn.  *  Am.  1881,  iv,  33,  34;  Am.  1892,  iv,  33. 

8  Expressly  applicable  to  corporations  and  to  urban  districts  in  Penn- 
sylvania (Const.  1873,  iii,  7)  and  Missouri  (Const.  1875,  iv,  53);  ap- 
plicable to  urban  districts,  though  not,  expressly,  to  corporations,  in 
North  Dakota  (Const.  1889,  69,  70). 

In  Kentucky  (Const.  1890,  60),  among  the  States  where  this  had  de- 
veloped into  a  general  rule  of  legislative  procedure  (vide  ch.  ii,  sec. 
2  (d),  pp.  39,  40,  supra),  cities  and  towns  are  among  the  types  of  dis- 
tricts which  may  not  be  exempted  from  the  operation  of  a  general  act. 

*  In  chronological  order : 

West  Virginia  (Const.  1872,  xi,  i)  requires  the  passage  of  general 
laws,  "  uniform  as  to  the  class  to  which  they  relate ",  for  the  organi- 
zation of  all  corporations. 


475  ]  URBAN  DISTRICTS  83 

4.  Simple  Referendum  upon  organization 
A  majority  Referendum,  within  the  district  proposed  to 
be  incorporated  into  a  city,  was  first  temporarily  imposed  in 
Missouri,  between  1865  and  1875,  in  connection  with  its 
peculiar  population  provision.  Having  then  been  required 
in  Wyoming,  as  we  have  seen,  for  the  organization  of  any 
municipal  corporation,  it  has  been  required  in  South  Caro- 
lina, since  1895,  f°r  tne  organization  of  cities  and  towns 
only.  In  Illinois,  since  1904,  Chicago  may  be  increased  or 
diminished  only  subject  to  a  Referendum  of  the  city,  and  of 
the  territory  proposed  to  be  annexed  or  disconnected.1 

Arkansas  (Const.  1874,  xii,  3)  requires  the  passage  of  general  laws 
"  for  the  organization  of  cities  (which  may  be  classified)  and  incor- 
porated towns  ". 

Missouri  (Const.  1875,  ix,  7)  followed  by  Colorado  (Const.  1876, 
xiv,  13)  require  the  classification  by  general  law  of  cities  and  towns 
into  not  more  than  four  classes. 

California  (Const.  1879,  xi,  6)  followed  by  Washington  (Const. 
1889,  xi,  10 ),  Idaho  (Const.  1889,  xii,  i),  Utah  (Const.  1895,  xi,  6), 
Oklahoma  (Const.  1907,  xviii,  i),  and  Arizona  (*  Const.  1911,  xiii,  i), 
require  the  classification  of  cities  and  towns  in  proportion  to  population. 

South  Dakota  (Const.  1889,  x.  i)  and  Wyoming  (Const.  1889,  xiii, 
i)  require  the  classification  of  municipal  corporations  into  not  more 
than  four  classes. 

Kentucky  (Const.  1890,  156)  classifies  cities  and  towns,  in  its  instru- 
ment, on  the  basis  of  population,  into  six  classes.  So  New  York 
(Const.  1894,  xii,  2) — cities  only — three  classes;  and  Minnesota  (Am. 
*  1896,  iv,  36) — cities  only — three  classes;  (Am.  *  1898,  iv,  36) — cities 
only — four  classes. 

South  Carolina  (Const.  1895,  viii,  i)  requires  merely  the  classifica- 
tion, by  general  law,  of  municipal  corporations. 

Virginia  (Const.  1902,  116)  classifies  urban  districts  in  its  instru- 
ment, on  the  basis  of  population,  into  two  classes,  known  as  "  cities " 
and  "  towns  "  respectively. 

1Mo.  Const.  1865,  viii,  5  (until  1875). 

Wyom.  Const.  1889,  xiii,  2. 

S.  C.  Const.  1895,  viii,  2. 

111.  *  Am.  1904,  iv,  36. 

The  Massachusetts  and  Pennsylvania  population  requirements  (cf. 
p.  77,  note  i,  supra),  for  a  change  from  town  or  borough  to  city  gov- 


84  TERRITORIAL  BASIS  OF  GOVERNMENT  [476 

5.  Freedom  from  Legislative  control  over  charter  formation 
The  provisions  just  discussed  are  a  mere  adaptation,  to 
urban  districts,  of  rules  far  more  commonly  applied  to  the 
formation  of  counties.  Closely  connected  with  them,  his- 
torically, but  with  a  shift'  of  emphasis  from  boundary  lines 
to  governmental  form,  are  the  so-called  Freeholders'  Char- 
ter provisions,  originated  in  1875 — as  a  substitute  for  the 
preceding — by  Missouri,  and  now  appearing  in  the  instru- 
ments of  nine  Western  States.  The  idea  being  here  prim- 
arily to  insure  to  the  inhabitants  of  already  established 
urban  districts,  at  least  of  a  certain  size,1  control  over  the 
formation  of  their  own  charters,  the  question  of  how  these 
districts  are  to  be  delimited  is  almost  totally  ignored.  Min- 
nesota expressly  requires  a  three-fifths  vote  to  change  es- 
tablished "  patrol  limits  " ;  and  Missouri  made  the  separa- 
tion from  the  county  of  St.  Louis  of  an  enlarged  city  to 
depend  upon  Referenda  in  both  the  county  and  the  city. 
Otherwise,  the  provisions  apply  to  the  exterior  boundaries 
of  cities  perhaps  only  to  this  extent,  that  they  render  im- 
possible the  old  practice  of  defining  their  boundaries  as  i 
mere  incident  to  legislative  acts  of  incorporation. 

Apart  from  the  question,  which  we  need  not  here  con- 
sider, of  what  topics  of  government  are  or  are  not  entrusted 
to  the  uncontrolled  discretion  of  a  locality  which  operates 
under  this  charter  system,2  these  States  may  be  divided,  on 
the  basis  of  control  over  the  charter  itself,  into  three  classes. 

ernment,  are  coupled  with  Initiative  provisions.  (Mass.  Am.  1821,  ii : 
Pa.  Const.  1873,  xv,  i). 

Cf.  also  the  recent  Michigan  rule,  applicable  to  all  local  acts.  p.  41. 
supra. 

1  In  Missouri,  cities  containing  over  100,000  inhabitants.  In  Cali- 
fornia, 100,000  until  1887 ;  then  10,000  until  *  1892 ;  since  then.  3,500. 
In  Washington,  20,000.  In  Arizona,  3,5oo.  In  Oklahoma,  2,000.  In 
Colorado,  cities  of  the  first  and  second  class.  In  Minnesota  and 
Michigan,  any  city  or  village.  In  Oregon,  any  city  or  town. 

*  In    Missouri,    California    until    1905,    Oklahoma    and    Arizona,    the 


477]  URBAN  DISTRICTS  85 

In  Missouri,  the  advance  over  the  already  existing  simple 
Referendum  consisted  merely  in  replacing  the  Legislature, 
as  the  original  framing  body,  by  a  Board,  or  Charter  Con- 
vention, caused  to  be  popularly  elected  by  the  City  at  any 
time,  free  to  propose  any  scheme  of  government  which 
should  be  consistent  with  the  Constitution  and  laws  of  the 
State,  and  should  include  a  mayor,  and  two  houses  of  legis- 
lation, of  which  at  least  one  to  be  chosen  by  general  ticket — 
such  charter,  or  such  sections  of  the  same  as  might  be 
separately  submitted,  to  go  into  force  when  ratified  by  popu- 
lar vote  and  deposited  in  specified  offices  of  record. 

California  and  Minnesota  do  not  go  quite  so  far  as 
Missouri.  California  replaces  the  charter  outline  prescribed 
in  the  Constitution  (and,  since  1905,  the  requirement 
also  that  the  charter  shall  be  consistent  with  the  laws  of 
the  State)  by  the  requirement  that  the  instrument  shall 
be  submitted  to  the  Legislature,  for  approval  or  rejection 
as  a  whole,  by  a  majority  of  the  members  elected  to  each 
house.  Minnesota,  again,  retains  the  Missouri  require- 
ments as  a  whole,  and  in  addition  provides  that  the  Legisla- 
ture, before  incorporation,  shall  prescribe  the  general  limits 
within  which  the  charter  shall  be  framed;  the  original 
Board,  moreover,  is  to  be  chosen,  not  by  the  city,  but  by  the 
District  Judges,  at  the  call  of  the  Legislature. 

The  other  four  States,  on  the  other  hand,  go  even  farther 
than  Missouri.  All  drop  the  Constitutional  outline  of  city 
government,  and  all  semblance  of  legislative  control,  though 
Washington,  Oklahoma  and  Arizona  retain  the  requirement 
of  consistency  with  the  Constitution  and  the  laws,  and  the 

charter  government  is  expressly  subject  to  the  laws  of  the  State;  in 
Washington  and  Michigan,  to  its  general  laws;  in  Minnesota,  to  gen- 
eral laws,  under  a  system  of  classification,  and  to  criminal  laws ;  in 
Oregon,  to  its  criminal  laws.  Colorado,  and  California  since  1905, 
express  no  reservation. 


86  TERRITORIAL  BASIS  OF  GOVERNMENT  [478 

two  latter  States,  by  a  device  borrowed  from  the  President's 
power  in  the  admission  of  new  States,  give  the  Governor 
the  determining  power  as  to  whether  this  condition  has 
been  complied  with.  Oklahoma  provides  also  for  an  Initia- 
tive petition  and  Referendum  on  the  question  of  whether  a 
Charter  Convention  shall  be  held,  in  case  the  legislative 
authority  of  the  city  does  not  call  one  of  its  own  volition. 
Colorado  drops  the  requirement  that  the  charter  must  be 
consistent  with  the  Constitution  and  the  laws,  and  deprives 
the  Legislature  of  concurrent  power  to  form  a  charter. 
Oregon  deprives  the  Legislature  of  this  power,  and,  in  place 
of  other  details,  merely  provides  that  "  the  legal  voters  of 
every  city  and  town  are  hereby  granted  power  to  enact  and 
amend  their  .municipal  charter."  Michigan  merely  provides 
that  under  the  general  incorporation  laws,  "  the  electors  of 
each  city  and  village  shall  have  power  and  authority  to 
frame,  adopt  and  amend  its  charter." 

Provisions  similar  to  the  above,  for  amending  the  charter, 
also  appear  in  all  nine  States.1 

1  Amendments  are  submitted  to  the  Referendum  of  the  urban  dis- 
trict by  its  own  legislative  authority  in  Missouri  and  Washington,  in 
California  until  *  1902  and  in  Arizona;  by  its  legislative  authority,  or 
by  Initiative  petition,  in  California  since  1902  and  in  Oklahoma;  by 
Initiative  petition  only,  it  would  seem,  in  Colorado;  by  Initiative  peti- 
tion, at  least,  in  Oregon.  The  Minnesota  Legislature  is  authorized  to 
prescribe  the  duties  of  the  judicially  appointed  Board  relative  to  sub- 
mitting amendments;  and,  since  1898,  the  Legislature  must  provide 
that  the  Board  shall  act  ministerially  in  submitting  Initiative  petition 
amendments.  Michigan  does  not  state  how  "  the  electors  "  act.  New 
Charter  Conventions  are  clearly  permissible  only  in  California  since 
1905,  in  Colorado  and  in  Arizona;  in  the  two  latter  states  they  may 
be  called  by  Initiative  petition  and  Referendum.  California  charters 
may  not  be  amended  oftener  than  once  in  two  years ;  special  elections 
on  one  and  the  same  question  may  not  be  held  oftener  in  Colorado. 

The  submission  of  charters  or  of  amendments  in  sections  is  ex- 
pressly authorized,  except  in  Oregon,  Oklahoma  and  Michigan;  ex- 
cept, also,  for  the  original  charter,  in  Colorado,  where,  instead,  a 
system  of  repeated  Charter  Conventions  is  provided. 


479]  URBAN  DISTRICTS  87 

6.  Local  Initiative-Referenda  provisions 
Three  broad  types  of  local  Initiative-Referenda  have  re- 
cently developed,  quite  distinct  from  one  another  in  theory, 
but  so  inextricably  intertwined  in  practice,  and  in  that  con- 
fusion of  thought  which  our  defective  political  terminology 
breeds,  that  they  must  necessarily  be  considered  together. 

The  first  type  of  such  provision  is  a  power  given  to  the 
electorate  to  check,  or  to  supersede,  the  actions  of  its  local 
authorities,  in  the  discharge  of  their  ordinary  governmental 
functions.  Provisions  of  this  type,  applicable  to  urban  dis- 
tricts, were  adopted  by  Utah,  first,  in  1906,  and  since  then 
by  Colorado,  Oklahoma,  Maine  and  Arizona,  and  have  of 
course  no  relation  whatsoever  to  the  exterior  boundaries  of 
these  districts.1 

The  figure  for  Referenda  is  uniformly  a  simple  majority,  except  in 
Missouri  and  Minnesota  (four-sevenths  for  the  charter,  three-fifths 
for  amendments)  and  in  California  (three-fifths  for  amendments, 
until  *  1902).  For  Initiative  petition  the  figure  varies  from  5  per  cent 
of  the  preceding  gubernatorial  vote,  or  10  per  cent  for  ordering  a 
special  election,  in  Colorado,  to  5  per  cent  of  the  legal  voters  in  Minne- 
sota; 15  per  cent  of  the  qualified  voters,  in  California;  not  more  than 
this  amount,  in  Oregon;  25  per  cent  of  the  vote  cast  at  the  last  elec- 
tion, in  Oklahoma  and  Arizona. 

Washington  provides  no  means  of  recording  the  charter. 

For  extension  of  these  provisions  to  all  municipalities,  cf.  ch.  ii, 
sec.  i   (e),  p.  31,  supra. 
References : 

Mo.  Const.  1875,  ix,  16,  17,  20-25;  Am.  1902. 

Cal.  Const.  1879,  *  xi,  8;  Am.  *i887;  *i892;  1902;  1905. 

Wash.  Const.  1889,  xi.  10. 

Minn.  *  Am.  1896,  iv,  36;  Am.  1898. 

Colo.  Am.  1902,  xx,  4-6. 

Oreg.  Am.  1906,  xi,  2.     Cf.  iv.  la. 

Okla.  Const.  1907,  xviii,  2,  3,  4. 

*  Mich.  Const.  1908,  viii,  21. 

*Ariz.  Const.  1911,  xiii,  2. 

1  The  Colorado  provision,  superseded  in  1910,  applies  only  to  cities 
of  the  first  and  second  class;  the  Arizona  provision  to  incorporated 


88  TERRITORIAL  BASIS  OF  GOVERNMENT  [480 

A  second  type  of  provision  confers  a  similar  power  in 
the  case  of  Charter  Conventions  or  charter  amendments, 
under  some  of  the  Freeholders'  systems  just  described.  This 
perfection  of  the  original  plan,  under  which  only  the  local 
legislative  authority  (or,  in  Minnesota,  the  judicially  ap- 
pointed Board)  could  initiate  changes,  was  made  by  Min- 
nesota in  1898,  and  since  then  by  Colorado,  California. 
Oregon,  Oklahoma  and  Arizona,  and  affects  exterior  boun- 
daries most  remotely,  if  at  all.1 

Finally,  Oregon,  in  1906,  followed  by  Colorado  and  Ar- 
kansas in  1910,  appear  to  give  the  local  electorate  control, 
not  only  over  the  acts  of  its  own  authorities,  but  also  over 
such  acts  even  of  the  State  Legislature  as  specially  affect 
it.  This  power,  if  it  is  upheld  by  the  courts,  affects  the  de- 
termination of  exterior  boundaries  directly.2 

cities  and  towns  (not  to  villages) ;  the  others,  to  all  urban  districts. 
For  application  of  all  except  the  Colorado  provision  to  other  than 
urban  districts,  vide  ch.  ii,  sec.  2  (e),  supra. 

Utah  (Am.  1900,  vi,  i,  par.  2)  leaves  all  details  to  the  Legislature. 

Colorado  (Am.  1902,  xx,  5,  6)  requires  5%  of  the  preceding  guber- 
natorial vote  (or  10%  for  a  special  election)  for  an  Initiative  petition 
proposing  measures;  other  details  to  be  determined  by  the  charter. 

Oklahoma  (Const.  1907,  xviii,  4)  requires  25%  of  the  vote  cast  at 
the  preceding  election  for  petitions  either  proposing  measures  or  in- 
voking the  Referendum. 

In  Maine  (*  Am  .1908,  iv,  part  3,  21)  the  system  may  be  optionally 
introduced  by  any  city  council,  subject  to  a  Referendum  upon  its 
adoption.  The  Legislature  however  may  at  any  time  introduce  a 
uniform  method.  No  further  details. 

Arizona  (*  Const.  1911,  iv,  i,  8)  requires  15%  of  the  qualified  elec- 
tors for  proposing  measures,  10%  for  invoking  the  Referendum;  and, 
until  provided  by  general  law,  the  localities  may  prescribe  the  basis 
upon  which  these  percentages  are  to  be  computed. 

1  For  details,  vide  p.  86,  note  i,  supra. 

•  All  three  provisions  apply  to  all  urban  districts,  and  to  other  dis- 
tricts as  well.  Vide  ch.  ii,  sec.  2  (e),  p.  43,  supra. 

In  Oregon  (Am.  1906,  iv,  la)  and  Colorado  (*  Am.  1910,  v,  i) 
not  more  than  15%  of  the  legal  voters  may  be  required  for  petitions 


48 1  ]  URBAN  DISTRICTS  89 

II.    URBAN    SUBDIVISIONS 

The  extent  to  which  urban  subdivisions  have  come  to  be 
mentioned  in  the  Constitutions  affords  a  fair  measure  of  the 
increasing  importance  of  urban  districts.  Wards  are  first 
mentioned  in  the  original  Pennsylvania  instrument,  expiring 
in  I79O;1  then,  revived  again  in  New  York's  second  instru- 
ment in  1821,  they  spread  pretty  generally  before  the  War 
through  the  North  Atlantic  States,  including  Maryland 
and  Virginia,  and  through  the  Middle  West,  including 
Kansas ;  since  the  War  also  to  several  other  Southern  States, 
Nebraska,  Colorado,  Washington  and  Oklahoma.  -  Even 
divisions  of  wards  have  come  to  be  mentioned,  under  a 
special  appellation,  in  Maryland.2  "  Districts  ",  as  an  alter- 
native for  wards,  appear  in  Kentucky ; 3  districts  for  police 
magistrates  coordinate  with  those  for  justices  of  the  peace 
in  rural  territory,  appear  in  Illinois  and  Nebraska;4  dis- 
trict court  justices  in  New  York;5  sewerage  districts,  co- 
ordinate with  rural  drainage  districts,  in  Louisiana ; 6  sub- 
divisions of  cities,  towns  and  villages  are  mentioned  in  gen- 
proposing  measures,  nor  more  than  10%  for  invoking  the  Referendum, 
and  the  localities  determine  details  in  connection  with  municipal 
measures  proper. 

Arkansas  (*  Am.  1910,  v,  i)  requires  not  more  than  8%  of  the  legal 
voters  for  the  Initiative,  or  5%  for  the  Referendum  petition. 

1  Pa.  Const.  1776,  30  (until  1790). 

2N.  Y.  1821;  Me.  1834;  Pa.  1838;  Mich.  1839;  R.  I.  1842;  N.  J.  1844; 
Wise.  1848;  Ky.  1850;  Va.  1850  (not  mentioned  after  the  War  until 
1902)  ;  Md.  1851  (and  precincts  of  Baltimore  wards  in  1864)  ;  Ohio 
1851;  Ind.  1851;  Mass.  1855;  Kans.  1859;  Neb.  1866;  Ark.  1874;  Ala. 
1875;  Mo.  1875;  Tex.  1876;  Colo.  1876;  N.  H.  1877;  La.  1879;  Wash. 
1889;  Minn.  1892;  Del.  1897;  N.  C.  1900;  Okla.  1907. 

8  Ky.  Const.  1890,  160. 

*  111.  Const.  1870,  vi,  21. 

Neb.  Const.  1875,  vi,  18. 

5  N.  Y.  Const.  1894,  vi,  17. 

«La.  Am.  1904,  281. 


90  TERRITORIAL  BASIS  OF  GOVERNMENT  [482 

eral,  in  connection  with  a  guarantee  of  election  of  local 
officers,  in  Wisconsin  and  Virginia ;  *  in  connection  with  a 
limitation  of  indebtedness,  in  Utah.2  The  divisions  of  the 
city  of  New  Orleans  are  most  prominent.  As  early  as  1845, 
it  had  "  municipalities  ",  appearing  again  in  1898  as  "  mu- 
nicipal districts"  (distinct  from  wards).  Between  1868 
and  1879  it  was  specially  divided  into  coroner's  districts. 
In  1879  separate  city,  police  and  magistrate's  courts  are 
mentioned ;  by  a  process  of  development  to  which  we  shall 
have  occasion  to  refer  again,  these  gave  birth  in  1898  to 
city  court,  city  criminal  court,  and  recorder's  court  dis- 
tricts, defined  as  such  in  the  Constitution.8 

Before  the  War,  the  only  provision  affecting  the  formation 
or  maintenance  of  these  subdivisions,  in  terms,  was  a  Vir- 
ginia requirement  of  1850,  that  cities  and  towns  containing 
more  than  5,000  white  inhabitants  should  be  laid  off  into 
wards  for  voting  purposes.4  Since  the  War,  several  of  the 
New  Orleans  districts  have  come  to  be  completely  defined 
in  the  instrument ; 5  New  Hampshire  wards  may  not  be 
altered  in  such  a  way  as  to  lump  fractions  of  the  represen- 
tative quota ; 6  wards  in  Minnesota  may  not  be  erected  nor 

1  Wise.  Const.  1848,  xiii,  9. 

Va.  Const.  1870,  vi,  20  (until  1902). 

3  Utah  Const.  1895,  xiv,  3. 

3  La.  Const.   1845,  8;   1868,  93:   1879,   i35>   136;   1898,   140,   141,   143, 
J47>  309;  Am.  1906,  140. 

4  Va.  Const.  1850,  iii,  2. 

6  The  two  coroner's  districts  are  defined  in  terms  of  streets  (La. 
Const.  1868,  93)  until  1879.  City  courts,  originally  limited  in  number 
to  not  less  than  three  nor  more  than  eight,  have  developed  into  two  city 
court  districts,  defined  in  terms  of  "municipalities".  (La.  Const.  1879, 
*I35;  Am.  1884;  1898,  143,  147).  Police  magistrate's  courts,  origi- 
nally unrestricted  in  number,  have  developed  into  two  city  criminal 
court  districts,  defined  in  the  same  terms,  but  not  identical  with,  the 
preceding  (Const.  1879,  136;  1898,  140). 

6  N.  H.  Am.  1877,  ii,  9- 


483]  URBAN  DISTRICTS  9! 

changed,  and  in  Kentucky  and  Alabama  may  not  be 
changed,  by  special  act; l  Virginia  city  councils  have  a  con- 
stitutional right  "  in  a  manner  prescribed  by  law ",  to 
change  the  number  or  boundaries  of  wards.2  Elsewhere, 
these  subdivisions  may  be  defined  in  the  charter,  or  by  legis- 
lative act  not  in  charter  form,  or  by  the  local  authorities 
under  the  charter.  In  the  former  cases,  the  provisions  af- 
fecting urban  districts  in  general,  of  course  apply.  In  the 
latter  case,  any  provision  which  affects  the  form  of  local 
government  may  be  said  to  be  germane.  Such  are  the 
Freeholders'  Charter  and  Initiative-Referenda  provisions, 
of  somewhat  doubtful  relevance  to  exterior  boundaries. 
Such,  finally,  is  a  charter  outline  prescribed  in  one  State- 
Virginia — which  has  remained  untouched  by  the  Western 
populistic  movement. 

III.    SUMMARY 

Most  of  the  provisions  discussed  in  the  preceding  pages 
bear  only  remotely  upon  the  subject  of  urban  boundaries. 
In  general  they  may  be  said  to  have  the  negative  effect  of 
destroying  the  power  originally  possessed  by  the  Legislature 
to  alter  urban  lines,  exterior  and  interior,  at  will,  without 
any  regard  to  its  method  of  procedure.  To  determine  what 
control  they  have  substituted  for  this  would  demand  a  spe- 
cial study  of  its  own,  based  upon  the  constructions  which 
the  several  State  Courts  have  placed  upon  their  respective 
Constitutional  provisions.  It  is  fortunate  that  we  have  Courts 
which  can  interpret  this  chaos.  It  is  fortunate  that  in  their 
interpretations  they  have  kept  the  necessary  organizing 
power  of  the  State  from  being  hopelessly  enmeshed  in  a 

1  Minn.  *  Am.  1892,  iv,  33. 
Ky.  Const.  1890,  59,  par.  20. 
Ala.  Const.  1901,  104,  par.  29. 
3  Va,  Const.  1902,  121. 


92  TERRITORIAL  BASIS  OF  GOVERNMENT  [484 

tangle  of  technicalities.  But  it  would  be  much  more  fortu- 
nate if  the  people,  speaking  through  their  Constitutions, 
had  analyzed  the  urban  problem  with  a  little  more  care,  and 
so  been  able  to  formulate  self-interpreting  provisions. 

What  seems  to  me  to  have  been  the  main  trouble  with  us 
in  the  past — I  criticize,  not  our  policy,  but  our  technical  pro- 
cedure— is  that  in  our  zeal  for  local  self-government,  we 
have  neglected  to  define  our  terms.  We  have  sought  Home 
Rule,  without  making  clear  what  our  homes  were  to  be. 
We  have  directly  deprived  the  Legislature  of  some  of  its 
control  over  cities.  We  have  made  the  exercise  of  that  con- 
trol which  it  retains  more  difficult.  We  have  vested  fuller 
control  over  local  affairs  in  the  city  itself.  We  have  admitted 
the  people  of  the  city  to  a  more  direct  participation  in  its 
local  government.  But  we  have  not,  except  in  the  rarest 
instances,  even  faced  the  problem  of  who  shall  decide  what 
the  boundaries  of  a  constantly-growing  city  shall  be.  If 
this  question  is  to  some  extent  answered  in  the  general  pro- 
visions we  have  discussed,  the  answer  may  fairly  be  said  to 
have  been  inadvertent. 

This  is  a  very  small  technical  point,  it  may  be  said,  this 
question  of  urban  boundaries.  It  is  true  that  the  more  im- 
portant question  facing  Constitutional  framers  to-day  is 
how  the  line  between  urban  and  State  functions  is  to  be 
drawn ;  and  that  it  is  only  because  of  its  connection  with  this 
large  and  difficult  problem  that  the  definition  of  areas  needs 
to  be  considered.  But  can  the  larger  question  be  answered 
unless  we  answer  the  smaller  one  as  well?  When  we  con- 
trast the  negative  results  which  this  chapter  has  afforded 
with  the  completely  elaborated  Referendum  checks  which 
so  many  States  have  imposed  upon  Legislative  control  of 
local  boundaries,  I  think  the  underlying  reason  for  the  dis- 
tinction suggests  itself.  Every  representative,  in  Legislature 
or  Convention,  lives  in  some  county,  and  hence  is  equally 


485]  URBAN  DISTRICTS  93 

interested  in  finishing  up  the  county  job  in  a  workmanlike — 
we  may  say  even  in  an  absurdly  overdone — manner.  But 
it  is  only  a  small  minority  of  delegates  who  represent  urban 
districts  in  any  especial  sense.  While  these  have  secured 
some  concessions  to  their  demands  for  local  Home  Rule — 
concessions,  in  most  cases,  of  form  rather  than  of  sub- 
stance— they  have  not  secured  a  broad  consideration  of  the 
entire  problem,  with  all  the  elements  involved.  When  this 
problem  comes  to  receive  the  attention  which,  in  the  opinion 
of  the  average  city-dweller,  at  least,  it  deserves,  the  first 
logical  step  will  be  to  define,  in  terms  too  clear  to  require 
reference  to  the  Courts,  how  the  boundary  between  urban 
and  rural  territory  is  to  be  determined. 


CHAPTER  V 

DISTRICTS  FOR  GENERAL  OR  JUDICIAL  PURPOSES 
OTHER  THAN  COUNTY  AND  URBAN 

I.  MINOR  DIVISIONS 

IN  every  State  rural  districts  smaller  than  the  county 
have  been  found  necessary.  The  original  English  "  hun- 
dred "  still  survives  in  Delaware,  where  it  has  been  men- 
tioned in  the  Constitution  since  1792.  The  use  of  the  eccle- 
siastical "  parish  "  for  civil  purposes — also  in  accordance 
with  English  tradition — was  more  common  during  the  Col- 
onial period,  and  is  reflected  in  the  early  instruments  of 
four  States:  Georgia,  where  in  1777  it  was  used  as  the 
term  in  which  the  newly-created  counties  were  (provision- 
ally) defined;  South  Carolina,  where  parishes  are  recog- 
nized under  this  name,  side  by  side  with  "  districts  ",  in 
both  1776  and  1778;*  New  Hampshire,  where  "parishes 
with  town  privileges  "  appear  both  in  1784  and  in  the  still 
surviving  instrument  of  1792;  and  Louisiana,  where  the 
parish,  appearing  in  1812  as  a  subdivision  of  the  county,  has 
since  1845  usurped  the  latter's  functions. 

After  the  transformation  of  South  Carolina's  parishes 
and  districts,  in  1790,  into  a  uniform  system  of  legis- 
lative districts  ("  election  districts,"  so-called)  these  latter 
came  to  be  used  until  the  War  as  the  general  areas  of  local 
government.2  Militia  districts  were  similarly  made  use  of 

1  Particular  parishes  survived  until  the  War.    Cf.  S.  C.  Const.  1790, 
i,  7;  1865,  i,  3- 
3  First  mentioned  as  thus  used  in  S.  C.  Am.  1828,  v,  4. 

94  [486 


487]          FOR  GENERAL  OR  JUDICIAL  PURPOSES  95 

for  judicial  purposes  in  Tennessee,  until  1834,  and  con- 
tinuously since  1798  in  Georgia;1  and  "election  districts" 
(polling  precincts)  have  been  impressed  for  service  in  Mary- 
land.2 "  Plantations  and  places  unincorporated  "  also  sur- 
vive in  the  antique  instruments  of  Massachusetts,  New 
Hampshire  and  Maine,  as  reminders  of  the  fact  that  even  in 
New  England  the  uniform  division  of  the  State  into  urban- 
rural  towns  has  been  a  slowly-realized  ideal.3 

Apart  from  these  few  anomalies,  of  which  only  Delaware 
hundreds,  Maryland  election  districts,  and  Georgia  militia 
districts  are  of  importance  to-day,  the  principal  disagree- 
ment between  the  States  has  been  as  to  the  greater  or  less 
use  which  should  be  made  of  the  "  township  ".  This  term, 
which,  in  its  original  and  most  accurate  use,  describes  the 
territory  occupied  by  the  juristic  personality,  the  "  town  ", 
was  first  applied  to  areas  surveyed  ahead  of  population, 
under  the  system  of  township  planting  in  New  England 
and  in  the  Wyoming  Valley  of  Pennsylvania,  and  later, 
under  the  operation  of  the  National  Land  Office,  to  the 
rectangular  tracts  laid  out  in  the  Western  territory.  To 
this  fact,  reinforced  by  the  traditions  of  town  government 
brought  with  them  by  New  England  settlers,  is  to  be 
ascribed  the  appearance  of  the  "  town  "  or  "  township  ", 
throughout  the  North  and  West,  as  the  characteristic  area 

1 "  Captain's  Company"  in  Tennessee  (Const.  1796,  v,  12 — until  1834). 

"  Captain's  district "  before  the  War,  and  "  Militia  district "  since,  in 
Georgia  (Const.  1798,  iii,  5;  1868,  v,  6;  1877,  vi,  7). 

1  First  mentioned  as  thus  used  in  Md.  Const.  1851,  iv,  19. 

5  In  Massachusetts  these  anomalies  came  to  be  described  as  "  dis- 
tricts "  in  1821  and  1836,  and  in  1840  we  hear  no  more  of  them.  (Mass. 
Am.  1821,  iii;  1836,  xii;  1840,  xiii).  "Districts"  are  also  mentioned 
in  Rhode  Island  (Am.  1864,  iv). 

The  broad  topic  of  what  local  districts  actually  survived,  without 
being  mentioned  in  the  Constitutions  (e.  g.  parishes  and  manorial  dis- 
tricts in  New  York)  is  of  course  not  here  treated. 


96  TERRITORIAL  BASIS  OF  GOVERNMENT  [488 

of  local  government.  It  is  not  the  exclusive  area,  however, 
in  all  of  these  States,  even;  while  in  the  original  Southern 
States,  or  in  the  Southwestern  territory  where  "  congres- 
sional townships  "  (as  they  came  to  be  called)  were  less 
frequently  surveyed,  it  does  not  appear  at  all  before  the 
War.  Attempts  made  during  the  Reconstruction  period  to 
introduce  the  township  into  eight  Southern  States,  have 
left  permanent  results  only  in  four.1  As  a  general  result 
of  this  township  movement  we  may  distinguish  between 
three  classes  of  States  to-day:2 

First,  those  in  which  the  "  town  "  or  "  township  "  3  is 
the  only  county  subdivision  mentioned,  for  purposes  either 
of  local  government  in  general  or  of  minor  judicial  admin- 
istration. Twenty-two  States  in  all  come  under  this  head : 
virtually  all  north  of  the  Ohio  River  and  the  Red  River 
of  the  South,  running  as  far  west  as  North  Dakota,  Kan- 
sas and  Oklahoma,  but  not  including  Illinois,  Nebraska 
and  South  Dakota ;  and,  in  addition  to  these,  California  and 
Nevada  beyond  the  Rockies.4 

Second,  Illinois  and  the  Northwestern  States  not  in- 
cluded in  the  above,  and,  since  the  War,  West  Virginia,  Ala- 

JThe  temporary  appearances  are:  Maryland,  1864-67;  Florida,  1868- 
85;  Mississippi,  1868-90;  Virginia,  1870-74. 

The  case  for  the  township  is  stated  in  its  extreme  form.  It  is 
not  always  possible  to  determine  from  the  instrument  whether  the  dis- 
trict mentioned  under  this  name  is  in  actual  use  either  for  general  or 
for  judicial  purposes.  In  Missouri,  prior  to  1875,  and  in  Alabama, 
since  1867,  it  would  look  as  though  the  townships  were  used  only  for 
school  purposes.  Their  mention  in  West  Virginia,  since  1872,  is  prob- 
ably an  inadvertence. 

3  The  occasional  appearance  of  the  "  borough "  as  a  rural   district 
(cf-  P-  75>  note  3,  supra)  is  not  considered  in  this  classification. 

3 '"Town"  only  in  New  England,  New  York,  Wisconsin,  and  (until 
1862)  California. 

4  Towns  were  not  actually  mentioned  in  New  Hampshire  until  1784, 
owing  to  the  brevity  of  the  Revolutionary  instrument. 


489]  FOR  GENERAL  OR  JUDICIAL  PURPOSES  97 

bama  and  the  Carolinas.  In  these  fourteen  States  we  have 
evidence  that,  side  by  side  with  townships,  other  districts 
may  or  must  be  used  for  local  judicial  purposes:  "dis- 
tricts "  in  Illinois  and  West  Virginia;  "  districts  "  or  "  pre- 
cincts "  in  Nebraska;  "precincts"  in  North  Carolina,  Ala- 
bama and  the  Far  West ;  "  beats  "  in  South  Carolina  from 
1868  to  1895,  since  ^en,  "  magistrate's  districts  'V 

Third,  nine  remaining  Southern  States :  Virginia,  Ken- 
tucky, Tennessee,  Mississippi,  Louisiana,  Texas,  Florida, 
New  Mexico  and  Arizona.  In  these,  as  in  the  three  an- 
omalous States  of  Maryland,  Delaware  and  Georgia,  'there 
is  now  no  mention  of  townships  at  all,  but  other  local  dis- 
tricts under  various  names,  or  no  names  at  all,  appear,  as 
optional  or  obligatory  divisions  of  counties  for  judicial 
purposes.2 

Actual  rules  in  regard  to  the  formation  of  these  local 
districts  do  not  appear  in  the  Northeast  at  all,  and  not  em- 
phatically in  the  West.  Wisconsin,  it  is  true,  followed  by 
California  until  1879,  provided  that  the  system  of  town  and 
county  government  should  be  as  nearly  uniform  as  prac- 
ticable; and  Nevada  adopted  the  same  provision  without 

1  In  Pennsylvania  also,  until  1838,  districts  (apparently  identical  with 
those  established  for  voting  purposes)  were  named  as  judicial  units, 
side  by  side  with  townships. 

In  Illinois  neither  type  of  district  is  mentioned  until  1848;  in  South 
Carolina  until  1868.  In  Nebraska,  "  districts  "  are  mentioned  from  the 
beginning,  townships  as  well  in  1875.  In  North  Carolina,  townships 
are  first  mentioned  in  1868,  "precincts"  as  well  in  1876;  in  West  Vir- 
ginia, townships  in  1862,  "  districts "  as  well  in  1872 ;  in  Alabama, 
townships  (other  than  Congressional),  first  in  1867,  "precincts",  only, 
in  1875;  both,  since  1901. 

*  First  in  Mississippi,  since  1832.  In  Tennessee,  following  the  origi- 
nal use  of  militia  districts  for  this  purpose,  in  1834.  ]n  Texas  from 
the  beginning,  in  1845.  In  Virginia  since  1850  (converted  for  a  time 
after  the  War  into  townships).  In  Kentucky  since  1850.  In  Louisi- 
ana, from  1852  till  the  War,  and  revived  since  1879.  In  Florida  since 
1885,  following  the  use  of  townships. 


98  TERRITORIAL  BASIS  OF  GOVERNMENT  [490 

qualification;  Idaho  and  Utah  require  a  uniform  system  of 
county  government,  and  general  laws  providing  for  town- 
ship or  precinct  (in  Utah  township  and  precinct)  organiza- 
tion. Illinois,  again,  in  the  same  year  as  Wisconsin,  pro- 
vided, instead,  that  the  Legislature  should  provide  for  town- 
ship organization  by  general  law,  under  which  any  county 
might  organize  by  majority  vote  of  its  electors;  and  has 
been  followed  by  Wyoming.  California,  since  1879,  has 
tacked  this  provision  on  to  the  requirement  of  a  uniform 
system  of  county  government,  and  Washington  has  fol- 
lowed suit;  while  Illinois  itself,  since  1870,  followed  by 
Nebraska,  Missouri  and  North  Dakota,  has  added,  instead, 
a  permission  to  the  county  to  dispense  with  a  township  or- 
ganization, already  formed,  by  a  like  vote  of  the  electors. 
Just  what  effect  any  of  these  provisions  have,  however, 
upon  the  mere  division  of  counties  into  townships,  as  dis- 
tinguished from  the  structure  of  government  erected  therein, 
must  be  a  matter  of  judicial  interpretation.1  More  certainly 
applicable  is  a  Michigan  provision  permitting  County 
Boards  of  Supervisors  to  organize — or,  since  1908,  to  or- 
ganize and  consolidate — townships,  under  such  restrictions 
and  limitations  as  shall  be  prescribed  by  law;2  provisons  in 

1  In  some  of  the  Referendum  provisions,  a  majority  of  those  voting, 
instead  of  a  majority  of  the  electors,  is  required. 

References : 

Wise.  Const.  1848,  iv,  23. 
111.  Const.  1848,  vii,  6 ;  1870,  x,  5. 
Cal.  Const.  1849,  xi,  4;  1879,  xi,  4. 
Nev.  Const.  1864,  iv,  25. 
Neb.  Const.  1875,  x,  5. 
Mo.  Const.  1875,  ix,  8,  9;  Am.  1902. 
Idaho  Const.  1889,  xviii,  5. 
Wash.  Const.  1889,  xi,  4. 
N.  D.  Const.  1889,  170,  171- 
Wyom.  Const.  1889,  xii,  4. 
Utah  Const.  1895,  xi,  4. 
2  Mich.  Const.  1850,  x,  11 ;  *  1908,  viii,  15. 


49I]  FOR  GENERAL  OR  JUDICIAL  PURPOSES  gg 

two  contiguous  Western  States  designed  to  protect  the 
original  rectangular  shape;  1  and  prohibtions  of  special  leg- 
islation erecting  new  townships  or  changing  township  lines, 
in  Pennsylvania,  Missouri  and  Minnesota.2 

In  the  South,  on  the  other  hand,  the  provisions,  though 
not  always  complete,  are  usually  explicit,  at  least  to  the 
point  of  requiring  that  such  districts  shall  exist.3  Eleven 
varying  rules  may  best  be  presented  chronologically  by 
States : 

Mississippi,  until  1890,  required  merely  that  "  districts  " 
(once  referred  to  also  as  "  beats  ")  should  exist;  since  then 
there  are  to  be  five  districts  in  each  county,  not  to  be  created 
by  special  legislation,  and  with  a  two-thirds  county  Refer- 
endum for  change  in  boundaries,  elections  to  be  held  not 
oftener  than  once  in  four  years. 

Tennessee  requires  "  districts  ",  not  more  than  25  in  a 
county,  or  4  for  every  100  square  miles. 

Virginia  required  first  "  districts "  as  nearly  equal  as 
might  be  in  area  and  population.  In  1870,  townships  were 
required,  compactly  located,  at  least  three  in  each  county, 
and  none  additional  containing  less  than  30  square  miles. 
In  1874  the  same  rule  was  prescribed  for  "  magistrate's  dis- 
tricts ".  In  1902  the  minimum  area  for  additional  districts 
was  preserved,  but  other  restrictions  abolished. 

1  Minnesota  (Const.  1857,  xi,  3),  by  implication,  forbids  civil  townships 
to  differ  from  "  congressional  townships  "  except  when  these  are  di- 
vided by  county  lines,  or  contain  under  TOO  inhabitants,  in  which  case 
adjacent  units  may  be  combined. 

South  Dakota  (Const.  1889,  ix,  4)  requires  the  organization  of  coun- 
ties, by  general  law,  into  townships,  identical  with  congressional  town- 
ships, "  so  far  as  natural  boundaries  and  population  admit ". 

2  Pa.  Const.  1873,  iii,  7. 
Mo.  Const.  1875,  v,  53. 
Minn.  *  Am.  1892,  iv,  33. 

. s  They  are  optional  in  Texas  before  the  War  (Const.  1845,  iv,  13) 
and  in  Louisiana  (Const.  1852,  78;  1879,  125;  1898,  126). 


100  TERRITORIAL  BASIS  OF  GOVERNMENT  [492 

Kentucky,  until  1890,  required  merely  that  "  districts  " 
should  exist ;  since  then,  that  there  shall  be  three  to  eight  in 
each  county,  and  that  their  boundaries  shall  not  be  changed 
by  special  legislation,  except  when  new  counties  are  created. 

West  Virginia  required  at  first  three  to  ten  townships, 
as  compact  as  possible  with  reference  to  natural  boundaries, 
and  containing  as  nearly  as  possible  an  equal  white  popu- 
lation and  not  less  than  400  inhabitants;  boundaries  to  be 
controlled  by  the  County  Board  of  Supervisors,  with  Refer- 
enda of  the  townships  affected.  Since  1872,  "  districts  " 
are  to  be  three  to  ten  in  number,  as  nearly  equal  as  possible 
in  area  and  population,  and  the  County  Court  controls. 

Maryland,  between  1864  and  1867,  required  merely  that 
the  Legislature  should  provide  "  townships  or  permanent 
municipal  corporations  "  by  general  law,  in  place  of  the  ex- 
isting election  districts. 

North  Carolina,  in  1868,  provided  for  the  first  establish- 
ment of  townships  by  the  joint  action  of  the  first  elected 
County  Commissioners,  and  the  Legislature,  but  made  no 
provision  for  future  control.  Since  1876  the  Legislature  is 
unfettered,  even  as  to  the  continuance  of  the  system. 

Florida's  Reconstruction  instrument  contained  only  the 
Nevada  provision  for  a  uniform  system  of  county  and  town- 
ship government.  Since  1885,  at  least  two  "  justice  dis- 
tricts "  are  to  be  formed  in  each  county  by  the  County  Com- 
missioners. 

Texas  required  at  first,  indirectly,  five  "  justices  pre- 
cincts ";  since  1876,  four  to  eight,  with  control  in  the  Com- 
missioners Court  of  the  county. 

Alabama,  since  1875,  seems  merely  to  require  that  "  pre- 
cincts "  shall  exist,  and,  since  1901,  that  their  boundaries 
shall  not  be  changed  by  special  legislation,  except  when 
county  lines  are  changed. 


FOR  GENERAL  OR  JUDICIAL  PURPOSES  IOi 

South  Carolina  requires  that  townships,  established  prior 
to  1895,  and  not  expressly  abolished  in  1903,  shall  continue 
to  exist  as  bodies  corporate,  but  expressly  authorizes  the 
Legislature  to  change  their  lines  or  to  organize  new  town- 
ships. 

No  rule  for  "  precincts  or  districts  "  in  New  Mexico  or 
for  "  precincts  "  in  Arizona.1 

II.    JUDICIAL  SUBSTITUTES  FOR  THE  COUNTY 

Next  in  order  of  size  is  the  county  itself.  Everywhere, 
except  in  South  Carolina  during  its  early  years,  this  has 
been  the  normal  jurisdictional  area  for  the  lowest  Courts 
of  Record,  supplemented,  but  not  supplanted,  except  option- 
ally in  Nevada,  by  systems  of  minor  and  of  major  judicial 
divisions. 

The  uniform  extension  of  the  county  system  over  the 
entire  State,  however,  and  the  uniform  maintenance  of  each 
county  with  all  its  characteristic  functions  unimpaired,  have 
not  been  so  universal. 

i.  Territory  outside  of  the  county  system 
The  gridironing  of  the  entire  State  area  into  counties 

1  References : 

Miss.  Const.  1832,  iv,  23;  1868,  vi,  23;  xii,  6;  1890,  go,  170,  171,  260. 

Tenn.  Const.  1834,  vi,  15 ;  1870,  vi,  15. 

Va.  Const.  1850,  vi,  27;  1870;  vii,  2;  Am.  1874;  1902,  in. 

Ky.  Const.  1850,  iv,  34;  1890,  59,  par.  20,  142. 

W.  Va.  Const.  1862,  vii,  i,  13;  1872,  viii,  27. 

Md.  Const.  1864,  x,  2  (until  1867). 

N.  C.  Const.  1868,  vii,  3,  4;  1876,  vii,  14. 

Fla.  Const.  1868,  v,  21 ;  1885,  v,  21. 

Tex.  Const.  1868,  v.  19;  1876,  v.  18. 

Ala.  Const.  1875,  vi,  26;  1901,  104,  par.  29,  168. 

S.  C.  Const.  1868,  iv,  21 ;  1895,  v,  23 ;  vii,  2. 

*  N.  M.  Const.  1911,  vi,  26. 

*  Ariz.  Const.  191 1,  vi,  9. 


102  TERRITORIAL  BASIS  OF  GOVERNMENT  [494 

has  waited,  in  many  States,  upon  the  settlement  of  unoc- 
cupied lands.  One  method  of  treating  such  territory  is  to 
organize  it  into  "  districts  ",  bearing  somewhat  the  same 
relation  to  counties  that  the  Federal  territories  do  to  the 
States  of  the  Union.  Districts  of  this  nature  are  men- 
tioned in  the  original  instrument  of  Virginia  l  and  the  sec- 
ond instrument  of  Kentucky.2  South  Carolina,  also,  in  an 
early  and  unsuccessful  attempt  to  introduce  the  county  sys- 
tem, provided  for  complementing  it  in  this  manner.3 

2.  Augmented  counties 

An  advance  upon  the  preceding  system  is  the  attachment 
cf  territory  to  a  particular  county  for  all  judicial  purposes. 
Such  attachment  is  mentioned,  as  a  general  phenomenon,  in 
Michigan,  in  four  recent  Far  Western  States,  and,  since 
the  War,  in  Texas.  The  reference  in  Michigan  is  to  "  coun- 
try "  or  "  territory  ",  which  apparently  may  be  attached  at 
will.  In  Colorado  it  would  look  as  though  any  county  might 
be  attached  to  another  for  judicial  purposes.  The  first 
Texas  rule  was  that,  upon  the  certification  of  the  District 
Judge  that  Courts  could  not  properly  be  held  in  any  county, 
the  Governor  must  attach  the  same  to  that  county  whose 
county  seat  was  nearest  that  of  the  county  in  question;  in 
]  876  this  was  changed  to  a  permission  to  divide  unorganized 
territory  into  counties  in  advance  of  population,  and  attach 
the  same  to  convenient  organized  counties.  Finally,  three 
States  admitted  in  1889  make  the  distinction  between 
"  unorganized  "  and  "  organized  "  counties  most  clear  by 

1 "  District  of  West  Augusta."  Va.  Const.  1776,  Thorpe,  p.  3816 
(until  1830). 

2  "Districts,  counties  or  towns."    Ky.  Const.  1799,  vi,  11  (until  1850). 

3 "  The  whole  State  shall  be  divided  into  districts  and  counties,  and 
county  courts  established."  S.  C.  Const.  1778,  39  (until  1790). 


FOR  GENERAL  OR  JUDICIAL  PURPOSES 

providing  that  the  Legislature  shall  make  provision  for  at- 
taching the  one  to  the  other  for  judicial  purposes.1 

Two  other  Western  States  mentioned  in  their  "Schedules" 
the  existence  of  similar  attachments,  made  during  the  Ter- 
ritorial period;2  and  five  expressly  permit  specified  attach- 
ments or  combinations  of  counties,  until  otherwise  ordered 
by  the  Legislature.3 

3.  Divided  counties 

Nevada  is  peculiar  in  expressly  permitting  the  division 
of  counties  into  districts,  to  serve  as  the  judicial  unit;  and 
Arkansas,  since  1874,  accords  this  permission  in  one  special 
instance.4 

4.  Differentiated  districts  5 
In  still  other  States,  a  differentiation  of  judicial  organi- 

1  This  distinction  is  first  drawn  in  the  New  York  instrument  of  1821, 
and  is  recognized  to  some  extent  in  all  of  these  States,  except  prior 
to  1876  in  Texas. 

•References : 

Mich.  Const.  1835,  Scried.  12 ;  1850,  iv,  3 ;  *  1908,  v,  3. 
Tex.  Const  1868,  xii,  24;  1876,  ix,  I. 
Colo.  Const.  1876,  vi,  17. 
N.  D.  Const.  1889,  115. 
S.  D.  Const.  1889,  v,  27. 
Wyom.  Const.  1889,  v,  24. 

2  Iowa  Const.  1846,  xii,  7. 
Kans.  Const.  1859,  Sched.  19. 

3  Three  such  special  groupings  in  Wisconsin    (Const.   1848,  vii,  5). 
One  in  Oregon  (Const.  1857,  xviii,   n),  Nevada   (Const.  1864,  vi,  5), 
and    California    (Const.    1879,   vi,    6).     Nine   in    Washington    (Const. 
1889,  iv,  5). 

In  Illinois,  also,  for  a  time  (Const.  1848,  vii,  3 — until  1870),  terri- 
tory stricken  off  from  a  county,  but  not  actually  organized  within  the 
period  prescribed,  was  to  remain  a  part  of  the  parent  county,  for  all 
purposes,  until  otherwise  ordered. 

4Nev.  Const.  1864,  vi,  5. 

Ark.  Const.  1874  xiii,  5. 

5  Note  also  the  Alabama  chancery  districts,  sec.  iii,  4,  p.  121,  infra. 


104  TERRITORIAL  BASIS  OF  GOVERNMENT  [496 

zation  has  occurred,  which  has  resulted  in  the  displacement 
of  the  county,  not  for  all,  but  for  some,  of  its  characteristic 
uses.  Thus,  as  early  as  1792,  the  New  Hampshire  Legis- 
lature was  empowered,  subject  to  a  majority  petition,  to 
divide  any  county  into  two  districts  for  the  registry  of 
deeds.1  Probate  or  inferior  Court  districts,  in  addition  to 
counties,  are,  or  have  been,  mentioned  in  five  States.2  Prose- 
cuting Attorneys,  whose  jurisdiction  is  sometimes  cotermin- 
ous with  the  county,  sometimes  with  the  circuit  group  of 
counties,  are  in  two  States  expressly  permitted  to  be  honored 
with  county  groups  of  their  own.3  Illinois  since  1870,  has 
permitted  groups  of  counties  to  be  formed  for  "  County 
Court"  purposes  only;  and  Virginia  and  West  Virginia, 
for  a  time,  made  such  unions  compulsory,  under  certain  cir- 
cumstances, upon  the  Legislature.4  Finally,  Oklahoma  has 
a  remarkable  provision  whereby  any  county,  containing  tax- 
able property  of  less  than  $2,500,000,  shall,  upon  petition 
of  one-fourth  of  the  electors  and  a  majority  Referendum, 
be  attached  to  the  adjoining  county  containing  the  least 
taxable  property;  the  combination  then  has  the  character- 
istics of  a  single  county  in  all  except  two  respects :  the 

1  N.  H.  Const.  1792,  72  (amended  numbering,  71). 

2  Conn.  Am.  1850,  ix. 
Vt.  Am.  1850,  xvii. 

Ala.  Am.  1850,  v,  12;  Const.  1867,  vi,  11  (until  1875). 
Tenn.  Am.  1853,  vi,  3,  5;  Const.  1870,  vi,  4. 
Neb.  Const.  1866,  "Judiciary,"  5  (until  1875). 

3  Oreg.  Const.  1857,  vii,  17. 
Ala.  Const.  1901,  167. 

*  111.  Const.  1870,  vi,  18. 

Va.  Const.  1870,  vi,  13  (until  1902).  Counties  containing  less  than 
8,000  inhabitants  must  be  attached,  for  this  purpose,  to  adjoining  coun- 
ties. 

W.  Va.  Const.  1872,  viii,  34  (until  1879).  Counties  must  be  joined 
for  this  purpose,  upon  their  own  initiative  and  after  a  majority 
Referendum  in  each. 


497]  FOR  GENERAL  OR  JUDICIAL  PURPOSES 

County  Court  must  circulate  between  the  two  county  seats ; 
and  the  attached  portion  may  regain  its  independence  by  re- 
peating the  original  procedure.1 

III.    MAJOR  JUDICIAL  DISTRICTS 

The  effort  to  economize  official  material  in  a  sparsely- 
settled  territory,  and  at  the  same  time  to  make  access  to 
justice  easy,  naturally  leads  to  an  itinerant  judiciary.  The 
arrested  development  of  regions  within  which,  or  of  points 
at  which,  sessions  of  the  highest  Court  are  to  be  held,  into 
constitutionally-defined  districts  of  appellate  jurisdiction — 
the  far  commoner  and  fully-perfected  development  of  "  cir- 
cuits "  (crooked  lines)  into  similar  Lower  Court  districts — 
provide  an  interesting  subject  for  examination  in  all  except 
the  two  small  States  of  Delaware  and  New  Jersey,  and  con- 
servative New  England. 

i.  Highest  Court  districts 

The  requirement  that  the  highest  Court  shall  move,  as  a 
whole,  appeared  in  Maryland's  original  instrument,  under 
which,  and  until  as  late  as  1851,  the  sessions  were  to  be 
held  in  each  of  its  two  well-defined  "  Shores  ".2  Then  South 
Carolina,  in  1790,  required  annual  sessions  at  each  of  two 
places.3  Next  Ohio,  from  1802  until  1851,  required  annual 
sessions  in  each  county,  adding,  however,  a  peculiar  per- 
mission to  the  Judges  to  form  two  "  circuits  ",  within  each 
of  which  half  their  number  might  act  for  the  whole.4  Fin- 
ally Louisiana,  in  1812,  required  sessions  to  be  held  during 

1  Okla.  Const.  1907,  xvii,  5. 

2  Md.  Const.  1776,  56  (until  1851). 

3  S.  C.  Const.  1790,  x,  3  (until  1816). 

4  Ohio  Const.  1802,  iii,  2,  10  (until  1851). 


I06  TERRITORIAL  BASIS  OF  GOVERNMENT  [498 

nine  months  of  each  year  at  New  Orleans,  with  appellate 
jurisdiction  over  a  specified  group  of  counties;  during  the 
rest  of  the  year  at  such  place  as  the  Legislature  (at  inter- 
vals of  five  years)  might  determine,  with  jurisdiction  over 
the  remaining  counties.1 

This  represents  the  extreme  stage  reached  m  the  develop- 
ment of  independent  areas  of  jurisdiction  for  the  highest 
Court.  In  five  States  higher  up  the  Mississippi  River,  and 
in  Virginia,  wea-kened  provisions  of  a  similar  nature  were 
introduced  after  the  War  of  1812,  and  still  survive  in  Tenn- 
essee, Illinois,  Minnesota  and  Virginia.2  A  mere  authori- 
zation to  the  Legislature  to  require  sessions  at  more  than  one 
place  replaced  the  original  South  Carolina  provision  in  1816, 
the  original  Louisiana  provision  in  1845.  anc^  since  then  has 
been  introduced  into  several  other  States.3  In  general,  the 

1  La.  Const.  1812,  iv,  3  (until  1845). 

2  Mo.  Const.  1820,  v.  5;  1865,  vi,  5  (until  1875).     Mere  authorization 
of  not  more  than  four  full  appellate  districts. 

Tenn.  Const.  1834,  vi,  2.  Requirement  that  sessions  shall  be  held 
within  each  of  three  "  Grand  Divisions."  Changed  by  Const.  1870,  vi, 
2,  to  requirement  that  they  shall  be  held  at  each  of  three  specified 
places. 

111.  Const.  1848,  v,  3.  Requirement  of  sessions  within  each  of  three 
"  Grand  Divisions  ",  to  be  formed  "  as  nearly  equal  as  may  be  ".  By 
Const.  1870,  vi,  4,  the  Legislature  is  authorized  to  change  their  number 
or  boundaries. 

Ky.  Const.  1850,  iv,  9  (until  1890).  Mere  authorization  of  sessions 
within  one  or  more  of  the  districts  within  which  the  Judges  were  to  be 
elected  (vide  ch.  ix,  sec.  2,  infra}. 

Minn.  Const.  1857,  vi,  2.  As  the  preceding,  but  requiring  a  two- 
thirds  Legislative  majority. 

Va.  Const.  1870,  vi,  7 ;  1902,  93.  Requirement  of  sessions  at  "  two 
or  more  places  ". 

s  At  such  places  as  the  Legislature  prescribes.  S.  C.  Am.  1816,  x,  3 
(until  the  War);  Fla.  Const.  1838,  v,  4  (until  the  War);  Cal.  Const. 
1849,  vi,  10  (until  1879)  ;  Mich.  Const.  1850,  vi,  4;  *  1908,  vii,  3;  W.  Va. 


499]  FOR  GENERAL  OR  JUDICIAL  PURPOSES 

notion  of  an  itinerant  highest  Court  lingers  to  some  extent, 
but  has  not  resulted  in  the  Constitutional  definition  of  juris- 
dictional  areas  for  the  same. 

2.  Circuits  and  their  equivalents 

The  ancient  custom  of  sending  individual  Judges  on  cir- 
cuit through  the  shires  or  counties  almost  of  necessity  leads 
to  the  development  of  habitual  routes  of  travel,  determined 
by  the  judges  themselves  or  by  the  Legislature.  A  further 
very  natural  development  is  the  transference  of  the  term 
"  circuit  ",  from  the  path  traversed,  to  the  group  of  counties 
which  are  thus  habitually  combined  under  the  jurisdiction  of 
a  single  judge  on  his  travels.  Constitutional  treatment  of 
these  circuits  has  everywhere  been  accompanied  by  the  crea- 
tion, for  circuit  purposes,  of  a  special  class  of  judges,  with 

Const.  1872,  viii,  9;  N.  C.  Const.  1876,  iv,  7;  N.  D.  Const.  1889,  88; 
Idaho  Const.  1889,  v,  8;  Okla.  Const.  1907,  viii,  9. 

At  such  place  as  the  Legislature  prescribes.  Iowa  Const,  1846,  v,  3 ; 
i857,  v,  3. 

At  New  Orleans  during  a  specified  part  of  the  year,  during  the  bal- 
ance at  the  discretion  of  the  Legislature.  La.  Const.  1845,  66;  1852, 
68;  1868,  76;  1879,  84  (until  1898). 

At  the  seat  of  government  and  not  more  than  two  other  places.  Tex. 
Const.  1845,  iv,  3.  Changed  to  the  seat  of  government,  only,  in  1868 
(Const.  1868,  v,  4)  ;  then  to  the  seat  of  government  and  two  other 
places  (Am.  *  1874)  ;  then  to  the  original  provision  (Const.  1876,  v.  3). 
Finally,  by  an  amendment  of  1891  (Am.  1891,  v,  3,  5),  sessions  of  the 
highest  civil  court  are  to  be  held  at  the  seat  of  government  only;  those 
of  the  highest  criminal  court,  as  before. 

At  the  seat  of  government,  and  elsewhere  at  the  discretion  of  the 
Legislature.  Wise.  Const.  1848,  vii,  n;  Ohio  Const.  1851,  iv,  2;  Oreg. 
Const.  1857,  vii,  7;  Kans.  Const.  1859,  iii,  3;  S.  C.  Const.  1868,  iv, 
5 ;  1895,  v,  5 ;  Oreg.  *  Am.  1910,  vii,  4. 

At  the  seat  of  government,  and,  at  the  discretion  of  the  Legislature, 
at  three  other  places.  Ark.  Const.  1868,  vii,  3  (until  1874). 

In  the  other  States  the  location  of  sessions  is  either  not  treated,  or 
is  fixed  at  one  place,  usually  at  the  seat  of  government;  in  Louisiana, 
however,  since  1898,  at  New  Orleans. 


I08  TERRITORIAL  BASIS  OF  GOVERNMENT  [5OO 

jurisdiction  limited  to  particular  districts.1  This  movement, 
beginning  in  Pennsylvania  in  1790,  extended,  during  the 
next  generation,  into  Maryland  and  New  York,  and  into 
Ohio,  Indiana,  Mississippi,  Alabama  and  Missouri.  Since 
the  advent  of  the  Jacksonian  Democracy,  every  new  State 
has  started  with  this  system,  which  also  came  to  be  men- 
tioned in  1835  in  Georgia,  between  1845  and  1853  m  tne 
instruments  of  Louisiana,2  Illinois,  Virginia,  Kentucky  and 
Tennessee,  after  the  War  also  in  the  Carolinas.  The  idea 
has  survived  wherever  established,3  but,  in  the  course  of 
this  progression  through  forty  States,  the  relation  of  the 
judge  to  his  district  has  experienced  some  modification, 
roughly  represented  by  a  growing  preference  for  the  term 
"  Judicial  district  "  in  place  of  "  Circuit  ".4  That  is  to  say, 
as  the  population,  and  hence  the  volume  of  judicial  busi- 

1  This  was  the  case  even  in  New  York,  where,  owing  to  the  existence 
of  a  higher  Court,  the  local  functions  of  Supreme  Court  Judges  have 
always  been  the  more  prominent.  Since  the  abolition  of  Circuit 
Judges  in  1846,  however,  the  Supreme  Court  Judges,  though  obliged 
to  reside  in  separate  districts,  retain  a  measure  of  their  former  State- 
wide jurisdiction.  In  Oregon,  districts  were  established  at  once — 
special  Circuit  Judges  only  in  futuro.  In  the  other  States  provisions 
authorizing  an  exchange  of  districts  between  the  Judges  are  common, 
but  no  lower  Judge  has,  as  a  rule,  jurisdiction,  at  one  and  the  same 
time,  over  more  than  one  district. 

s  Not  mentioned  in  Louisiana  between  1852  and  1868. 

3  Indistinct   allusions   to   "  districts "   of   this  nature  appear   also   in 
Massachusetts  (Am.  1855,  xix)  and  Connecticut  (Am.  1876,  xx). 

4  "Circuits"  in  Pennsylvania  until  1838,  Ohio  until  1851,  New  York 
until    1846 ;    consistently    in    Indiana,    Alabama,    Missouri,    Arkansas, 
Florida,    Wisconsin,    Virginia,    West    Virginia,    South   Carolina,    and 
South  Dakota;  also  in  Maryland  since  1851,  Georgia  since  the  War, 
and  Illinois  since  1870. 

"  Circuits "  in  Michigan,  but  one  special  large  "  Judicial  District " 
until  1908.  "  Circuits  or  Districts "  in  Tennessee.  "  Common  Pleas 
Districts "  in  Ohio.  "  Appellate  Districts "  in  California  (but  cf.  p. 
118,  note  i). 

In  all  other  cases,  "  Judicial  Districts  ". 


50I]  FOR  GENERAL  OR  JUDICIAL  PURPOSES 

ness,  has  increased,  justification  has  been  found  for  increas- 
ing the  number  of  Judges  in  the  State,  either  by  diminish- 
ing the  size,  and  hence  increasing  the  number,  of  the  dis- 
tricts themselves,  or  by  increasing  the  number  of  Judges 
provided  for  each  district.  In  Washington  and  Arizona, 
for  instance,  the  district  has  disappeared,  having  been  re- 
duced to  the  (here  quite  large)  county.  In  New  York,  on 
the  other  hand,  there  has  been  an  increase  in  the  number  of 
Judges  for  each  comparatively  large  district.  Thus  both  on 
the  Pacific  slope  and  in  New  York,  as  well  as  in  several 
other  States  where  the  evidence  is  not  so  clear,  fixed  Courts 
are  now  so  abundant  as  to  facilitate  judicial  relief  without 
judicial  locomotion. 

The  numerous  direct  limitations  upon  the  result  to  be 
obtained,  in  the  formation  of  these  districts,  will  be  treated, 
as  usual,  in  the  order  of  their  first  appearance. 

(a)  Restrictions  upon  the  number  of  counties  composing  a 

district 

The  original  Pennsylvania  plan  was  to  assign  an  upward 
limit  of  six  and  a  downward  limit  of  three  to  the  number 
of  counties  which  might  be  included  within  one  circuit.  This 
model  was  followed  by  Alabama,  and,  for  a  time,  by  Miss- 
issippi and  Arkansas.  Abolished  in  the  two  last  States,  it 
has  developed  in  the  first  two  named  somewhat  differently. 
In  the  industrial  State  of  Pennsylvania,  with  its  large  vol- 
ume of  judicial  proceedings,  small  districts  are  encouraged; 
the  upward  limit  has  been  lowered  first  to  five  and  then  to 
four;  the  downward  limit  was  abolished  in  1838,  while 
since  1873  counties  containing  40,000  inhabitants  must  con- 
stitute separate  districts.  In  Alabama,  on  the  other  hand, 
the  upward  limit  was  first  raised  to  eight,  then  to  twelve, 
and  finally,  in  1901,  removed  altogether;  while  the  down- 
ward limit  has  remained  unchanged  except  that,  since  this 


HO  TERRITORIAL  BASIS  OF  GOVERNMENT  [502 

last-named  year,  a  county  containing  20,000  inhabitants,  and 
taxable  property  of  $3,500,000,  may  be  constituted  separ- 
ately, or  combined  with  one  other  county.1 

(b)  Restrictions  upon  the  number  of  districts  in  the  State 
The  preceding  definition  of  the  district  in  terms  of  coun- 
ties is  not  well  adapted  to  a  State  in  which  the  number  of 
counties  is  rapidly  increasing.  Ohio,  accordingly,  the  next 
State  after  Pennsylvania,  preferred  to  set  a  downward  limit 
(three)  upon  the  number  of  the  districts.  This  example, 
with  much  variation  in  the  figure,  has  since  been  quite  com- 
monly followed,  and  though,  in  most  of  the  earlier  in- 
stances, it  has  been  abandoned,  a  minimum  figure  still  ap- 
pears in  seven  Western  States  and  in  Kentucky,  Louisiana 
and  Florida.2  Experience  seems  to  have  demonstrated  that 

1  The  upward  limit  in   Mississippi  was   raised  to   12  in   1832.     The 
Arkansas  figures  were  5  and  7. 

Pa.  Const.  1790,  v,  4;  1838,  v,  3;  1873,  v,  4,  5. 

Miss.  Const.  1817,  v.  3;  1832,  iv,  13  (until  the  War). 

Ala.  Const.  1819,  v,  5;  1867,  vi,  4;  1875,  vi,  4;  1901,  139,  147. 

Ark.  Const.  1836,  vi,  4  (until  1848). 

2  Three  in  Wyoming  (Const.  1889,  v.  19,  20,  21)  ;  also  in  Ohio  (Const. 
1802,  iii,  3)  until  1851,  Indiana  (Const   1816,  v,  3)  until  1851,  Nebraska 
(Const.  1866,  "Judiciary",  2,  8)   until  1875. 

Four  in  Oregon  (Const.  1857,  vii,  2)  ;  also  in  New  York  (Const. 
1821,  v,  5)  until  1846,  Florida  (Const.  1838,  v,  5)  until  the  War,  Iowa 
(Const.  1846,  v,  4)  until  1857,  and  Colorado  (Const.  1876,  vi,  13,  14) 
until  *  1886. 

Five  in  Wisconsin  (Const.  1848,  vii,  5,  6)  and  Kansas  (Const.  1859, 
"i,  5,  14)- 

Six  in  Nebraska  since  1875  (Const.  1875,  vi,  10,  n)  and  North  Dakota 
(Const.  1889,  104,  106). 

Eight  in  South  Dakota  (Const.  1889,  v,  16,  17)  and  Florida  (*  Am. 
1902,  v,  8;  1910,  v,  35). 

Nine  (apparently)  in  Michigan  (Const,  vi,  6,  7;  xix,  4)  ;  changed  by 
an  amendment  of  1905  to  the  number  then  existing;  and  since  1908 
no  restriction.  Nine  also  in  Illinois  (Const.  1848,  v.  7)  until  1870,  and 
(apparently)  in  West  Virginia  from  1872  (Const.  1872,  viii,  10,  14,  15) 
until  1879. 

Twelve  in  Louisiana  (Const.  1845,  75;  1868,  83)  until  1879,  except  for 


5°3]  FOR  GENERAL  OR  JUDICIAL  PURPOSES  Iir 

Legislatures  are  more  apt  to  form  too  many  districts  than 
too  few.  The  downward  limit  has  been  accompanied  by  an 
upward  limit  in  six  States,  in  four  of  which,  Oregon,  Ken- 
tucky, Louisiana  and  Wyoming,  this  double  limitation  still 
survives.  In  the  other  two,  both  limitations  disappeared 
together,  but  in  one  of  these,  New  York,  the  upward  limit 
was  subsequently  reestablished  for  a  time;  and  in  Illinois, 
since  1870,  an  upward  limit  has  taken  the  place  of  the  pre- 
viously established  minimal  figure.1 

a  break  from  1852  till  the  War,  when  districts  were  not  mentioned; 
and  in  Kentucky  (Const.  1850,  iv,  10,  24)  until  1890. 

Twenty  in  Virginia  (Const.  1850,  vi,  2-5)  until  the  War. 

Twenty-one  in  Louisiana  since  1879  Const.  1879,  IO7>  IQ8;  1898,  107). 

Number  established  by  Legislature  at  first  session  after  adoption  of 
instrument,  in  Kentucky  since  1890  (Const.  128,  132). 

1  Eight  in  New  York  (Const.  1821,  v,  5)  until  1846.  Between  1869 
(Am.  vi,  5)  and  1894,  also,  the  existing  number  of  districts  (actually 
eight)  might  not  be  increased. 

Twenty  in  Louisiana  (Const.  1845,  75)  until  1852,  and  from  1868 
(Const.  1868,  83)  until  1879;  then  thirty-one  (Const.  1879,  107,  108) 
until  1898;  since  then  (Const.  1898,  107)  thirty. 

Sixteen  in  Kentucky  (Const.  1850,  iv,  24)  until  the  population  of  the 
State  should  exceed  1,500,000.  This  figure  was  reached  by  the  Census 
of  1880,  and  in  1890  a  new  sliding  limitation  was  copied  from  Illinois. 

Seven  in  Oregon  (Const.  1857,  vii,  2).  In  imitation  of  Kentucky  it 
was  also  provided  that,  until  the  white  population  should  amount  to 
100,000  the  number  of  districts  should  not  exceed  five.  Here,  also  the 
population  figure  was  reached  in  1880. 

Four  in  Wyoming  (Const.  1889,  v,  21)  until  the  taxable  property 
in  the  State  shall  exceed  $100,000,000. 

One  district  for  every  100,000  inhabitants  of  the  State,  plus  such 
districts  as  may  be  formed  in  counties  containing  over  100,000,  and 
plus  the  Cook  county  district,  in  Illinois  (Const.  1870,  vi,  13,  15,  23). 

One  district  for  every  55,000  inhabitants,  in  West  Virginia,  from 
1872  (Const.  1872,  viii,  15)  until  1879. 

One  district  for  every  60,000  inhabitants  of  the  State,  plus  one  for 
each  county  having  150,000  inhabitants,  in  Kentucky  since  1890  (Const. 
1890,  132,  137). 

Vide  also  p.  117,  infra  for  the  peculiar  provision  existing  in  Alabama 
for  a  time,  in  connection  with  the  requirement  of  an  extraordinary 
Legislative  majority. 


112  TERRITORIAL  BASIS  OF  GOVERNMENT  [504 

Finally,  in  Georgia  until  the  War,  in  Florida  and  in 
North  Carolina  for  a  time  since  the  War,  and  in  California 
to-day,  the  number  of  districts  has  been  precisely  deter- 
mined.1 

(c)  Constitutional  definition,  in  terms  of  counties 
It  is  doubtless  because  the  Susquehanna  River  and  Chesa- 
peake Bay,  dividing  Maryland  into  two  sharply-distin- 
guished geographical  sections,  familiarized  this  State  with 
fixed  political  divisions,  that  districts  here  have  from  the 
very  beginning  been  expressly  defined  as  groups  of  specified 
counties.2  New  Mexico,  with  less  apparent  justification, 
does  the  same.3  Florida,  also,  has  occasionally  emphasized 
her  precise  determination  of  the  number  of  districts  by  de- 
fining the  county  contents  of  each  ;4  and  the  recent  Washing- 
ton-Arizona plan  of  identifying  the  Superior  Court  district 
with  the  county  may  be  considered  as  an  instance  of  the 
same  distrust  of  the  Legislature.  Beginning,  moreover, 
with  New  York  in  1846  special  districts — usually  for  urban 
territory — have  been  separately  constituted  in  seven  States.5 

1  Three  in  California  (*  Am.  1904,  vi,  4). 

Five  in  Georgia  from  1835  (Am.  1835,  iii,  i)  until  the  War. 

Seven  in  Florida  from  1868  (Const.  1868,  vii,  7;  xvii,  3)  until  1870; 
then  five  (Am.  1870,  iii;  Am.  1875,  v)  until  1885;  then  seven  again 
(Const.  1885,  v,  8,  10)  until  1902;  then  eight  (*Am.  1902,  v,  8) 
until  1910. 

Twelve  in  North  Carolina  (Const.  1868,  iv,  12,  13)  until  1876. 

*Six  groups  (Am.  1805,  ix)  until  1851;  then  eight  (Const.  1851,  iv, 
8)  until  1864;  then  thirteen  (Const.  1864,  iv,  24)  until  1867;  since  then 
(Const.  1867,  iv,  19)  eight  again. 

3  Eight  groups,  new  counties  to  be  attached  to  any  contiguous  district 
(*  Const.  1911,  vi,  25). 

4  Fla.   Const.   1868,  vii,  7;  xvii,  3    (until  1870);  Am.   1875,  v    (until 
1885). 

6  In  New  York  (Const.  1846,  vi,  4,  16— until  1869),  the  city  (and 
county)  of  New  York. 

In  Michigan  (Const.  1850,  xix,  I — until  *  1908),  the  Upper  Peninsula 
counties  and  islands. 


505]          FOR  GENERAL  OR  JUDICIAL  PURPOSES 

(d)  Requirements  of  contiguous  territory  or  contiguous 

counties 

Thirteen  Western  States,  beginning  with  Arkansas  in 
1836,  provide — usually  in  connection  with  some  other  re- 
striction— that  the  districts  shall  consist  of  contiguous  coun- 
ties.1 These,  with  Kentucky  and  South  Carolina,  are  the 
only  States  expressly  to  provide  that  counties  may  not  be 
divided.2 

(e)  Rules  as  to  the  population  to  be  included 
The  first  clear  suggestion  that  population  is  an  index 
of  the  volume  of  judicial  business,  and  hence  a  fit  measure 
of  the  judicial  district,  appeared  in  New  York,  where,  from 

In  Ohio  (Const.  1851,  iv,  3),  Hamilton  county. 

In  Missouri  (Const.  1865,  vi,  14),  the  county  of  St  Louis;  since 
1875  (Const.  1875,  vi,  27;  ix,  24)  the  language  is  not  clear,  but  ap- 
parently the  county  of  St.  Louis,  as  it  existed  before  division,  is  per- 
petuated as  one  circuit. 

In  Illinois  (Const.  1870,  vi,  23),  Cook  county. 

In  Louisiana  (Const.  1879,  107,  130;  1898,  107,  132),  the  parish  of 
Orleans. 

In  Colorado  (Am.  1902,  xx,  i),  the  city  and  county  of  Denver. 

1  Ark.  Const.  1836,  vi,  4  (until  the  War)  ;  Const.  1874,  vii,  13. 
Wise.  Const.  1848,  vii,  6. 

Ohio  Const.   1851,  iv,  3. 

Kans.  Const.  1859,  iii,  14. 

111.  Const.  1870,  vi,  13. 

Minn.  Am.  1875,  vi,  4. 

Mo.  Const.  1875,  vi,  24. 

Neb.  Const  1875,  vi,  u. 

Colo.  Const.  1876,  vi,  14. 

N.  D.  Const.  1889,  106. 

S.  D.  Const.  1889,  v,  17. 

Mont.  Const.  1889,  viii,  14. 

Cal.  *Am.  1904,  vi,  4. 

So  also  N.  Y.  Const.  1846,  vi,  4,  16  (until  1869). 

2  Ky.  Const.  1850,  iv,  19;  1890,  128,  132  (not  expressly  applicable  to 
other  than  the  initial  division). 

S.  C.  Const.  1895,  vii,  13. 


114  TERRITORIAL  BASIS  OF  GOVERNMENT  [506 

1846  until  1869,  it  was  provided  that,  if  the  districts  were 
changed,  they  should  be  made,  at  their  first  rearrangement, 
"  equal  in  population,  as  nearly  as  may  be  'V  Illinois  and 
Minnesota  later  gave  weaker  expression  to  this  attractive 
but  absolutely  unattainable  ideal  of  a  population  symmetri- 
cally divided  for  judicial  purposes.2 

The  Constitutional  definitions,  already  mentioned,  of 
special  urban  districts,  side  by  side  with  a  limited  number  of 
rural  districts,  is  a  more  practical,  though  less  ambitious, 
attempt  to  secure  something  like  an  equal  volume  of  busi- 
ness among  the  several  districts ;  and  in  a  few  States,  includ- 
ing Illinois,  since  the  Civil  War,  generalized  provisions  have 
been  adopted  encouraging,  or  insuring,  this  degree  of  uni- 
formity. The  Illinois  provision  is  highly  involved,  but 
appears  to  mean  that  counties  containing  under  50,000  in- 
habitants, and  counties  containing  over  50,000  but  whose 
business  does  not  occupy  nine  months  of  the  year,  may  not 
be  established  as  separate  districts;  other  counties  may  be, 
subject  to  the  upward  limitation  of  number  (not  more  than 
one  circuit,  in  addition  to  these,  for  every  100,000  inhabi- 
tants in  the  entire  State)  ;  and  whenever  a  county  newly 
passes  the  100,000  mark,  the  limit  moves  up  one  circuit.3 
Kentucky  requires  separate  establishment  for  any  county 
containing  150,000  inhabitants,  and  permits  it  (subject  to 
the  upward  limit  of  not  more  than  one  district  in  addition 
to  the  preceding,  for  every  60,000  inhabitants  in  the  entire 

1N.  Y.  Const.  1846,  vi,  4  16  (until  1869). 

2  111.  Const.  1870,  vi,  13,  15.     "  As  nearly  equal  as  circumstances  will 
permit,  having  due  regard  to  business,  territory  and  population." 

Minn.  Am.  1875,  vi,  4.  "  Population  as  nearly  equal  as  may  be  prac- 
ticable." 

In  neither  State  is  it  clear  that  the  provision  refers  to  other  than  the 
initial  division. 

3  111.  Const.  1870,  vi,  13,  15.    Cf.  p.  in,  note  i,  supra. 


507]  FOR  GENERAL  OR  JUDICIAL  PURPOSES  n$ 

State)  for  counties  containing  40,000  inhabitants  which 
include  a  city  of  2O,ooo.1  The  provisions  requiring  separate 
establishments  in  Pennsylvania,  and  permitting  them  in 
Alabama,  have  already  been  mentioned. 

Virginia,  in  1902,  after  a  long  interval  during  which  no 
restrictions  upon  Legislative  control  appeared,  transferred 
the  familiar  rule  of  a  minimum  population,  from  the  crea- 
tion of  new  counties,  to  the  creation  of  new  judicial  dis- 
tricts.2 

Two  general  types  of  indirect  limitations  have  also  de- 
veloped. 

(f)  Retarding  provisions 

The  device,  long  familiar  in  connection  with  Legislative 
apportionment,  and  which  we  have  seen  sparingly  applied 
to  the  formation  of  counties,  of  prescribing  intervals  during 
which  no  change  may  occur,  was  applied  first  to  judicial 
districts  by  Louisiana  in  1845,  and  subsequently  by  a  dozen 
States  in  all,  in  six  of  which  it  survives.  In  New  York 
and  West  Virginia  it  is  now  the  only  restriction. 

Several  varieties  of  this  provision  have  developed.  The 
original  Louisiana  provision,  while  in  force,  permitted  action 
of  any  sort  only  every  sixth  year;  and  with  some  variation 
as  to  figure,  this  was  the  rule  in  Virginia  before  the  War, 
and  is  the  existing  rule  in  Illinois,  West  Virginia  and  New 
York.3 

1Ky.  Const.  1890,  132,  137,  138.    Cf.  p.  in,  note  i,  supra. 

*  Va.  Const.  1902,  95.  The  new  district  not  to  contain  less,  nor  an 
old  district  to  be  thereby  reduced  to  less,  than  40,000  inhabitants. 

3  The  six-year  figure  in  Louisiana  was  the  same  as  the  length  of  the 
Judge's  term,  but  inasmuch  as  a  system  of  partial  renewal  was  in 
force,  the  identity  is  of  no  significance.  Virginia  named  eight  years, 
that  being  the  Judge's  term.  In  Illinois  changes  may  be  made  only  at 
the  session  preceding  the  (sexennial)  general  election  of  Judges.  So 


TERRITORIAL  BASIS  OF  GOVERNMENT  [508 

For  a  time,  New  York,  followed  by  Iowa,  had  a  peculiar 
additional  restriction,  permitting  the  number  of  districts  to 
be  changed,  at  the  periodical  times,  not  more  than  one,  in 
either  direction;  similarly  Kentucky,  with  different  periods 
for  change  in  number  and  for  change  in  boundary.1  Ken- 
tucky has  finally  developed  a  rule  permitting  the  number  of 
districts  to  be  increased,  at  any  time,  but  permitting  mere 
changes  of  boundary  only  at  the  first  session  after  the  (de- 
cennial) enumeration.2  West  Virginia  and  Missouri,  for  a 
time,  had  provisions  curiously  contrasting  with  the  preced- 
ing.3 

Finally,  three  Western  States  have  adopted  a  rule  per- 
mitting increase  in  the  number  of  districts  only  at  intervals 

in  West  Virginia,  where  the  term  is  for  eight  years.     In  New  York, 
districts  may  be  altered  "  once  after  every  [decennial]  enumeration." 

La.  Const.  1845,  75  (until  1852). 

Va.  Const.  1850,  vi,  5  (until  the  War). 

N.  Y.  Am.  1869,  vi,  6;  Const.  1894,  vi,  i. 

111.  Const.  1870,  vi,  13. 

W.  Va.  Am.  1879,  viii,  14. 

1  The  original  number  of  districts  in  New  York  was  eight — changes 
at  the  first  session   after   every    (decennial)    enumeration.     In   Iowa, 
eleven   districts — changes  every   fourth  year,  that  being  the  term  of 
Judges.     In  Kentucky,   twelve  districts — changes  in  number    (only  to 
increase)   every  fourth  year;  other  changes  at  the  first  session  after 
the  (octennial)  enumeration. 

N.  Y.  Const.  1846,  vi,  16  (until  1869). 

Ky.  Const.  1850,  iv,  24,  27  (until  1890). 

Iowa  Const.  1857,  v,  10  (until  1884). 

Since  1884,  changes  may  be  made  in  Iowa  only  at  tegular  sessions. 

2  Ky.  Const.  1890,  132,  134. 

3  In  West  Virginia  (Const.  1862,  vi,  3 — until  1872),  mere  changes  of 
boundary  could  be  made  at  any  time,  but  change  in  number  only  every 
tenth  year. 

In  Missouri  (Const.  1865,  vi,  14— until  1870),  changes  of  any  sort 
could  not  be  made  at  the  session  preceding  the  general  election  of  six- 
year  Judges. 


509]  FOR  GENERAL  OR  JUDICIAL  PURPOSES 

which  correspond  to  the  length  of  the  Judge's  term;  mere 

changes  in  boundary  may  apparently  be  made  at  any  time.1 

(g)  Extraordinary  Legislative  majority 

In  Ohio,  since  1851,  and  in  California  for  a  time,  the 
requirement  of  two-thirds  of  the  members  elected  to  each 
house,  for  change  of  any  sort,  is  the  only  restriction  upon 
the  formation  of  these  districts.  In  five  Western  States  a 
similar  requirement  is  imposed  in  addition  to  the  minimum 
number  and  contiguous  territory  rules — in  three  of  these, 
in  addition  to  the  retarding  provision  as  well — but  only  with 
reference  to  an  increase  in  the  number  of  districts.  Ala- 
bama, for  a  time,  in  addition  to  its  rule  limiting  the  num- 
ber of  counties  in  a  district,  required  a  two-thirds  majority 
to  increase  the  number  of  districts  above  eight.2 

Notwithstanding  this  heaping-up  of  provisions  in  a  few 
Western  States,  the  general  tendency  in  the  country  as  a 
whole,  so  far  as  any  can  be  discerned,  seems  to  be  in  the  di- 
rection of  leaving  control  of  these  districts  entirely  in  the 
bands  of  the  Legislature.  Twenty-four  instruments  to-day 
contain  only  the  slightest,  if  any,  restrictions.3 

1  Four  years  in  Nebraska   (Const.   1875,  vi,   u)    and  North  Dakota 
(Const.  1889,  106).     Six  years  in  Colorado  (Const.  18/6,  vi,  14)  until 
*  1886. 

It  is  often  provided  that  changes  shall  not  have  the  effect  of 
depriving  a  judge  of  his  office;  but  Nevada  (Const.  1864,  vi,  5),  pro- 
vides that  the  changes  themselves  shall  not  take  effect  until  the  Judge's 
office  is  regularly  vacated. 

2  Two-thirds   of   the  "members  elected",   in    Ohio,   California  and 
Nebraska;  elsewhere,  two-thirds  of  the  "members". 

Ohio  Const.  1851,  iv,  15. 

Kans.  Const.  1859,  iii,  14. 

Cal.  Am.  1862,  vi,  5    (until  18/9). 

Ala.  Const.  1875,  vi,  4  (until  1901). 

Neb.  Const.  1875,  vi,  u. 

Colo.  Const.  1876,  vi,  14;  *  Am.  1886. 

N.  D.  Const.  1889,  1 06. 

S.  D.  Const.  1889,  v,  27. 

8  New  England,   New  Jersey  and  Delaware  do  not  mention  these 


Il8  TERRITORIAL  BASIS  OF  GOVERNMENT  [rlo 

3.  Intermediate  districts  and  their  offshoots 
Since  1850,  the  desire  to  provide  appellate  opportunities 
has  led,  in  seven  States,  to  systems  of  appellate  districts.1 

The  original  Virginia  plan,  which  did  not  survive  the 
War,  was  to  require  precisely  five  such  districts,  each  con- 
taining at  least  four  circuits,  subject  to  rearrangement,  like 
the  circuits  themselves,  only  every  eighth  year.  Missouri, 
in  1865,  a  little  more  liberal,  required  at  least  five  districts, 
each  to  contain  at  least  three  circuits,  all  outside  the  county 
of  St.  Louis,  which  was  a  separate  circuit  and  a  separate 
appellate  district  in  itself;  no  retarding  provision  appeared, 
nor  indeed  any  mention  of  subsequent  change  at  all,  and 
five  years  later  the  entire  system  was  abandoned.  In  1875, 
however,  a  special  appellate  district  was  established,  to  con- 
sist of  the  City  of  St.  Louis  and  four  adjacent  counties, 
and,  in  1884,  the  entire  State  was  freshly  divided  into  two 
districts,  with  power  to  the  Legislature  to  create  a  third, 
and  to  alter  lines  at  will.  Louisiana,  too,  in  1879,  excepted 
the  Parish  of  Orleans,  requiring  in  the  rest  of  the  State 
merely  five  districts,  the  boundaries  of  which  might  at  any 

districts.  Georgia  and  Tennessee  mention  them,  without  insisting  that 
they  exist.  With  temporary  or  unimportant  exceptions  South  Caro- 
lina, Missouri,  Texas,  Minnesota,  Nevada,  Montana,  Idaho,  Utah 
and  Oklahoma,  from  the  beginning — Indiana  since  1851,  Mississippi 
and  Arkansas  since  the  War,  North  Carolina  since  1876,  and  Iowa 
since  1884 — contain  no  provision  except  the  requirement  that  there 
shall  be  such  districts.  So  also  California  until  1862,  and  Virginia, 
1870-1902. 

Note  also  the  Pacific  slope  tendency  to  identify  this  type  of  district 
with  the  county. 

1  "  Sections  "  above  "  Circuits  "  in  Virginia ;  "  Districts  "  above  "  Cir- 
cuits "  in  Missouri  and  Illinois ;  "  Circuits "  above  "  Districts "  in 
Louisiana,  and  above  "  Common  Pleas  Districts  "  in  Ohio ;  "  Supreme 
Judicial  Districts  "  above  "  Districts  "  in  Texas ;  "  Departments  "  above 
"Districts"  in  New  York.  California  "Appellate  Districts"  perhaps 
belong  here,  rather  than  with  Circuits. 


FOR  GENERAL  OR  JUDICIAL  PURPOSES  IIOx 

time  be  changed;  and  then,  in  1898,  adopted  the  Missouri 
plan  of  a  special  district  consisting  of  Orleans  and  four 
other  parishes  only;  since  1906,  however,  the  rest  of  the 
State  is  again  to  be  divided  into  two  appellate  districts,  with 
complete  freedom  otherwise  to  the  Legislature. 

Illinois  and  Ohio  are  still  more  liberal,  the  former,  since 
1870,  merely  permitting,  the  latter,  since  1883,  requiring 
districts  without  any  restriction. 

Finally,  Texas,  since  1891,  has  established,  for  civil  pur- 
poses only,  appellate  districts,  limited  to  two  or  three  in  the 
first  place,  with  authority  given  to  the  Legislature  'to  in- 
crease them,  but  not  to  diminish.  And  New  York,  in  1894, 
required  the  establishment  of  four  "  departments  ",  of  which 
the  county  of  New  York  to  be  one,  the  others  "  to  be. 
bounded  by  county  lines  and  be  compact  and  equal  in  popu- 
lation as  nearly  as  may  be  " ;  changes  may  be  made  "  once 
every  ten  years  ",  and  the  number  of  departments,  in  sharp 
contrast  with  Texas,  may  not  be  increased;  it  is  impossible 
to  discover  from  the  language  whether  the  other  restric- 
tions apply  except  to  the  first  division.  Neither  here,  nor  in 
any  of  the  other  surviving  provisions,  is  the  attempt  made 
to  insure  harmony  of  lines  between  these  districts  and  the 
smaller  circuits  or  districts.1 

Within  these  districts  appellate  courts,  composed  either 
of  already  existing  judges,  or  of  judges  specially  created, 
hold  Court.  Where  do  they  hold  Court?  As  in  the  case 
of  the  Supreme  Court,  this  question  is  variously  answered. 

1  Va.  Const.  1850,  vi,  5  (until  the  War). 

Mo.  Const.  1865,  vi,  12  (until  1870);  Const.  1875,  vi,  12;  *Am. 
1884,  1-3- 

111.  Const.  1870,  vi,  n. 

La.  Const.  1879,  97,  98;  1898,  99,  ioo,  131;  Am.  1906,  100. 
Ohio  Am.  1883,  iv,  6. 
Tex.  Am.  1891,  v,  6. 
N.  Y.  Const.  1894,  vi,  2. 


120  TERRITORIAL  BASIS  OF  GOVERNMENT  [cjI2 

In  Ohio,  and  in  Louisiana  until  1898,  the  Court  went  on 
circuit  through  the  several  counties  or  parishes.  In  Miss- 
ouri, Illinois,  and  in  Louisiana  since  1906,  it  meets  at  such 
places — in  Texas  at  such  place — as  the  Legislature  deter- 
mines; in  New  York,  at  such  places  as  the  Judges  assigned 
to  the  Department  determine.  And  in  Virginia  the  Court 
was  required  to  meet  in  each  of  the  distinct  "  districts " 
into  which,  as  well  as  into  "  circuits,"  the  appellate  "  sec- 
tion "  was  to  be  divided.1 

4.  Coordinate  districts  and  their  offshoots 
In  four  Southern  States,  the  tendency  to  differentiate 
judicial  organization,  the  manifestation  of  which,  in  the 
case  of  county  business,  we  have  already  seen,  has  led  to 
the  establishment  of  equity  or  criminal  districts,  distinct 
from  the  regular  civil  circuits. 

Alabama  first,  in  1867,  required  "  chancery  divisions  ", 
without  restriction  until  1875,  when  an  upward  limit  of 
three  as  contrasted  with  eight  for  the  civil  circuits,  was  fixed, 
unless  increased  by  a  two-thirds  vote  of  the  Legislature; 
since  1901,  the  rule  is  the  same  as  for  the  circuits.  Ala- 
bama's neighbor,  Mississippi,  has  also  had  "  chancery  dis- 
tricts "  since  1868,  at  first  to  be  composed  of  not  more  than 
four  counties;  but  since  1876,  in  accordance  with  the  provi- 
sion regarding  circuits,  without  restrictions.  Tennessee, 
since  1870,  has  mentioned  chancery  districts.  Texas,  fin- 
ally, in  1876,  permitted  the  establishment  of  special  criminal 
districts,  containing  cities  of  at  least  30,000  inhabitants ;  in 
1901  this  was  reduced  to  a  permission  to  continue  one  such 
district  already  established.2 

1  At  least  two  of  these  districts,  to  contain  complete  circuits,  and  to 
be  wholly  included  in  the  section;  the  whole  system  subject  to  re- 
arrangement only  at  intervals  of  eight  years. 

2  Ala.  Const  1867,  vi,  7,  8;  1875,  vi,  7,  8;  1901,  145,  146,  147. 


513]          FOR  GENERAL  OR  JUDICIAL  PURPOSES  I2i 

In  Mississippi  (and  in  Alabama  at  first)  the  chancery 
judges  go  on  circuit  through  the  counties.  From  the  be- 
ginning, however,  the  subdivision  of  the  Alabama  divisions 
into  "  districts  "  has  been  required,  and,  since  1875,  Court 
is  to  be  held  in  each  of  these,  instead  of  in  each  county. 

IV.    MAJOR  DIVISIONS  FOR  GENERAL  PURPOSES 

The  county,1  with  hardly  an  exception,  is  the  largest  divi- 
sion used  for  general  governmental  purposes.  This,  rather 
than  the  larger  judicial  division,  corresponds  to  the  French 
dcpartcmcnt  as  the  territorial  unit  to  the  authorities  of- which 
the  duty  of  administering  the  laws  in  general  is  assigned. 
The  prevailingly  smaller  size  of  our  districts,  as  compared 
with  the  French,  as  well  as  our  preference  for  the  local  elec- 
tion of  the  authorities  therein,  measures  our  greater  degree 
of  "  decentralization  ".  It  is  worth  noting,  however,  that 
the  East  and  West  Shores  of  Maryland  were  utilized,  prior 
to  1851,  for  other  purposes  than  judicial;2  and  that  South 
Carolina's  requirement  of  sessions  of  its  highest  Court  at 
two  specified  places,  in  which  the  germ  of  a  division  of  the 
state  into  two  districts  may  be  discerned,  received  a  similar 
extension.3  The  obsolete  requirement  that  the  Connecticut 

Miss.  Const  1868,  vi,  17;  Am.  1876;  Const.  1890,  15.2,  164. 

Tenn.  Const.  1870,  vi,  4. 

Tex.  Const.  1876,  v,  i ;  Am.  1891,  v,  I. 

Georgia,  also,  from  1868  (Const,  v,  4)  until  1877,  permitted  the  use 
of  Senatorial  districts  (vide  ch.  viii,  infra}  for  criminal  purposes,  the 
Judge  going  on  circuit  through  the  counties. 

1  Vide  ch.  iii,  supra. 

2  There  was  to  be  a  Treasurer  and  a  Register  of  the  Land  .Office 
for  each  Shore.    Md.  Const.  1776,  13,  51  (until  1851). 

3  Distinct  Treasurers  for  Charleston  and   Columbia ;  distinct  offices 
for  the  Secretary  of  State  and  for  the  Surveyor  General.     When,  in- 
1816,  the  location  of  judicial  sessions  was  left  to  the  Legislature,  these 
administrative  requirements  were  left  unchanged.     S.  C.  Const.  1790, 
x,  i,  2  (until  the  War). 


122  TERRITORIAL  BASIS  OF  GOVERNMENT  [514 

and  Rhode  Island  Legislatures  should  meet  at  different 
places  may  also  be  mentioned  as  a  relic  of  historical  divi- 
sions, originally  quite  independent  of  one  another.1 

v.  SUMMARY 

The  net  effect  of  all  the  tendencies  and  movements  enum- 
erated in  this  chapter  has  been,  of  course,  to  produce  great 
dissimilarity  between  State  and  State,  as  regards  their  gen- 
eral system  of  political  divisions.  Ten  States,  it  will  be 
found,  clearly  recognize  three,  and  only  three,  types  of 
State-wide  divisions,  for  general  or  judicial  purposes:  the 
county,  one  division  smaller,  and  one  larger.2  With  regard 
to  none  of  the  other  existing  instruments  can  this  statement, 
with  literal  accuracy,  be  made;  while  the  rules  under  which 
these  districts  may  be  created,  abolished  or  changed,  show 
even  greater  variety.  Looking  at  the  situation  a  little  more 
broadly,  however,  we  may  say  that  these  three  tiers  of  di- 
visions still  constitute  the  standard  American  system,  to 
which  all  divergencies  of  individual  States  may  conveniently 
be  referred — a  minor  division,  representing  the  natural 
"  neighborhood  " ;  a  major  division,  serving  the  administra- 
tive convenience  of  the  State;  and  the  intermediate  county, 
too  large  for  the  one  purpose,  too  small  for  the  other,  and 
for  which  only  an  historical  justification  now  exists.  No 

1  Alternate  annual  sessions  of  the  Connecticut  Legislature  at  Hart- 
ford and  New  Haven.     Conn.  Const.  1818,  iii,  2 — until  1872. 

May  sessions  of  the  Rhode  Island  Legislature  always  at  Newport, 
until  1900.  October  sessions,  originally,  once  every  two  years  at  South 
Kingston,  once  every  four  years  at  Bristol,  and  once  every  four  years 
at  East  Greenwich;  adjournment  from  October  session  to  Providence. 
In  1854  the  October  session  was  abandoned,  and  adjournments  from 
the  May  session  were  to  be  at  Providence.  Since  TOCO,  all  sessions 
at  Providence.  R.  I.  Const.  1842,  iv,  3 ;  Am.  1854,  iii ;  1900,  xi. 

2  These    States    are    Pennsylvania,    Maryland,    Virginia,    West    Vir- 
ginia, Kentucky,  North  Carolina,  Florida,  Indiana,  Iowa  and  Kansas. 


515]          FOR  GENERAL  OR  JUDICIAL  PURPOSES 

substitute  for,  or  modification  of,  this  system  has  secured 
anything  like  general  acceptance.  And  it  is  also  pretty  gen- 
erally true  that  Legislative  control  over  minor  or  major  di- 
visions is  not  restricted  to  any  great  extent,  while  over 
counties  it  is;  just  how  restricted,  is  a  question  variously 
answered.  On  only  one  or  two  positive  principles,  in  short, 
does  national  experience  thus  far  coincide.  The  rest  re- 
mains to  be  worked  out  in  the  laboratory. 


CHAPTER  VI 

DISTRICTS  FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 
I.  MILITIA  DISTRICTS 

CONSTITUTIONAL  recognition  of  military  districts  rings 
oddly  on  our  modern  ears,  but  is  sufficiently  explained  by 
the  frontier  conditions  in  the  eight  contiguous  States  where, 
beginning  with  Georgia  in  1777,  this  recognition  was  first 
accorded.  Maryland,  in  1851,  was  a  belated  imitator  of 
these  models.  Though  in  several  of  these  States  the  pro- 
visions were  eventually  dropped,  they  still  survive  in 
Georgia,  where  the  militia  district  is  still  used  as  the  minor 
civil  division;  in  Tennessee,  where  it  was  similarly  utilized, 
prior  to  the  creation  of  the  present  justices  district;  in 
Kentucky,  Ohio  and  Mississippi. 

As  a  rule,  there  is  only  a  recognition  that  districts,  cor- 
responding to  one  or  more  of  the  traditional  service  grades, 
exist.  The  original  Georgia  provision,  however,  in  force 
until  1789,  required  counties  containing  less  than  250  men, 
liable  to  bear  arms,  to  be  formed  into  independent  "  com- 
panies " ;  every  larger  county,  into  one  or  more  "battalions" ; 
and,  since  1798,  it  has  been  clearly  implied  that  Company 
districts  are  to  be  subdivisions  of  counties ;  before  the  War, 
also,  that  Battalion  districts  were  to  be  either  subdivisions 
of,  or  entire  counties.  In  Tennessee,  prior  to  1834,  the 
implication  seems  to  be  that  counties  shall  constitute  field 
officers'  districts,  for  infantry,  and  captain's  districts  for 
cavalry,  and  shall  be  subdivided  into  captain's  districts  for 
infantry,  and  aggregated  to  form  field  officers'  districts  for 
cavalry.  In  Missouri,  the  River  was  named,  for  ten  years 
124 


FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 

after  1865,  as  the  dividing  line  between  two  military  dis- 
tricts, to  be  subdivided  by  the  Governor.  And  in  Miss- 
issippi, since  1868,  Congressional  districts  have  been  con- 
stituted "  Military  Divisions  "-1 

1 "  Companies  "  and  "  Battalions  "  in  Georgia,  1777-89,  and  in  Ken- 
tucky, 1792-99. 

"Captain's  Companies"  and  field  officers'  districts;  also  cavalry  dis- 
tricts of  corresponding  grades,  in  Tennessee,  1796-1834. 

"Captain's  Districts,"  "  Companies,"  or  "Company  Districts;'' 
"  Battalions,"  or  "  Battalion  Districts ;"  "  Regiments,"  "  Brigades  '* 
and  "Divisions,"  in  Georgia,  1798,  till  the  War;  Kentucky,  1799-1890; 
Indiana,  1816-51;  Tennessee,  since  1834;  Florida,  1838  till  the  War; 
Maryland,  1851-64. 

"  Company  Districts,"  only,  in  Ohio,   1802-51. 

Company  officers'  and  field  officers'  "  Commands,"  in  Missouri, 
1820-61. 

Unspecified  districts,  in  Mississippi,  1832  till  the  War,  and  in  Ohio 
since  1851. 

"  Military  Districts "  and  subdistricts  in  Missouri,  1865-75. 

"  Militia  Divisions  "  (under  Brigadier-Generals)  in  Mississippi  since 
1868. 

"Militia  Districts"  (corresponding  to  the  original  "Captain's  Dis- 
tricts '')  in  Georgia,  since  the  War. 

"  Companies,  Battalions,  Regiments  or  other  Commands,"  in  Ken- 
tucky, since  1800. 

Of  these,  the  Georgia  "  Captain's  Districts  "  or  later  "  Militia  Dis- 
tricts "  have  been  Constitutionally  impressed  for  civil  purposes,  since 
1798;    Georgia  "Battalion  Districts"   also  prior  to  the  War;   Tenn- 
essee "Captain's  companies,"  prior  to  1834. 
References : 

Ga.  Const.  1777,  35  (until  1789)  ;  1798,  i,  25;  Hi,  5;  iv,  3;  1868,  v,  6; 
1877,  vi,  7,  8. 

Ky.  Const.  1792,  vi,  4;  1799,  vi,  n;  1850,  vii,  3;  1890,  222. 

Tenn.  Const.  1796,  v,  n;  vii,  i,  2,  6;  1834,  viii,  i;  1870,  viii, 'i. 

Ohio  Const.  1802,  v,  i ;  1851,  ix,  2. 

Tnd.  Const.  1816,  vii,  3,  4  5;  xii  (until  1851).  Cf.  Const.  1851,  xii, 
5,  permitting  the  division  of  the  militia  into  "  sedentary  "  and  "  active  " 
classes. 

Mo.  Const.  1820,  ix,  i  (until  1861 ;  cf,  Thorpe,  pp.  2176,  2179)  ;  Const. 
Ordinance,  1865,  Thorpe,  p.  2220  (until  1875). 

Miss.  Const.  1832,  v,  "Militia,"  2;  1868,  ix,  6;  1890,  218. 

Fla.  Const.  1838,  vii,  i   (until  the  War). 
Md.  Const.  1851,  ix.  i   (until  1864). 


126  TERRITORIAL  BASIS  OF  GOVERNMENT 

2.    VOTING  DISTRICTS 

Provisions  looking  towards  the  division  of  the  smallest 
areas  of  popular  election  (counties,  cities  or  towns)  into 
still  smaller  districts,  to  serve  the  purely  administrative  pur- 
pose of  collecting  votes,  appeared  first  in  Pennsylvania,  in 
1776,  and  since  then,  in  ten  States  in  all,  surviving  in  eight, 
on  or  near  the  Atlantic  seaboard.  Pennsylvania,  also,  in 
1838,  in  the  interval  between  abandoning  its  original  rule, 
and  taking  over  a  new  one,  assumed  the  existence  of  such 
districts  in  a  clause  defining  the  residential  qualifications  of 
voters.  The  frequent  subsequent  adoption  of  similar  clauses 
by  other  States  indicates  a  widespread  recognition  of  the 
advisability  of  small  voting  districts ;  small  both  in  area  and 
in  voting  population.  The  importance  of  such  districts, 
as  a  means  of  facilitating  the  formal  expression  of  the 
popular  will,  is  indeed  so  great,  that  it  is  remarkable  that 
explicit  rules  have  not  been  more  generally  prescribed. 

The  original  Pennsylvania  plan,  lasting  only  until  1790. 
was  to  permit  the  division  of  any  county,  "  at  its  own 
choice  ",  into  districts.1  The  next  State  to  face  the  prob- 
lem was  Georgia,  which,  in  1798,  provided  an  entirely  dif- 
ferent rule,  placing  control  of  its  "  precincts  "  ("  election- 
precincts  ",  since  the  War)  in  the  Courts,  though  requiring 
the  Legislature  to  prescribe  the  manner  in  which  these 
powers  should  be  exercised.2  This  provision  survives  in 
Georgia  to-day;  and  in  1873  Pennsylvania  itself  gave  the 
county  or  city  courts  power  to  divide  townships  or  wards, 
with  the  proviso  that  the  districts  must  be  compact,  and  that 
when  over  250  votes  had  been  cast  in  a  district,  it  must  be 
divided.3 

1  Pa.  Const.  1776,  18  (until  1790).    Like  the  Maryland  districts,  these 
seem  to  have  been  used  also  for  judicial  purposes. 

2  Ga.  Const.  1798,  i,  26 ;  1868,  iii,  6 ;  1877,  iii,  7,  par.  18. 

3  Pa.  Const.  1873,  viii,  n. 


FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 

Maryland,  on  the  other  hand,  in  1799  required  the  Legis- 
lature to  divide  each  county  and  Baltimore  city  into  a  speci- 
fied number  of  districts.  The  number  in  two  cases  was  sub- 
sequently changed  by  constitutional  amendment,  and  fin- 
ally, in  1837,  all  restrictions  were  removed.  A  prohibition 
upon  special  legislation,  temporarily  imposed  in  1864,  is 
the  only  limitation  which  has  since  been  made  in  this  State. 
It  has  already  been  pointed  out  that  these  "  election  dis- 
tricts "  have  come  to  be  utilized  as  the  regular  minor  judi- 
cial divisions.1 

Kentucky,  the  same  year  as  Maryland,  was  liberal  'from 
the  beginning.  It  gave  a  clear  authorization  to  the  Legis- 
lature to  divide  counties  at  will,  and  was  followed  in  this 
respect  by  Louisiana  and  Mississippi,  as  they  entered.  In 
1845,  Louisiana  supplemented  this  by  a  permission  to  dele- 
gate this  power  to  the  county  or  municipal  authorities ;  but 
neither  here  nor  in  Mississippi  did  the  provision  survive  the 
War.  Kentucky,  in  1850,  required  the  Legislature  either 
to  divide  the  counties,  or  to  delegate  the  power  to  some 
county  authority;  and  this  continued  in  force  until  1890, 
since  when  the  only  provision  in  this  State  is  a  prohibition 
upon  change  of  boundaries  by  special  legislation,  except  in 
the  creation  of  new  counties.2 

The  only  other  positive  rule  affecting  these  districts  is  a 
requirement  in  Connecticut,  since  1876,  that  a  newly-incor- 
porated town,  not  privileged  with  separate  representation, 
shall  constitute  a  separate  election  district  in  the  town  from 

1  Md.  *  Am.  1799,  vi,  i;  1803,  viii;  1807,  x;  1837,  12;  Const.  1864,  Hi, 
32  (until  1867). 

2  Ky.  Const.  1799,  ii,  5;   1850,  ii,  5;   1890,  59.     "Precincts"   (voting 
districts)    are  expressly  mentioned  in  addition  to  "districts"   (minor 
judicial  districts). 

La.  Const.  1812,  ii,  5;  1845,  ii,  7;  1852,  ii,  7  (until  the  War). 
Miss.  Const.  1817,  iii,  8;  1832,  iii,  8  (until  the  War). 


128  TERRITORIAL  BASIS  OF  GOVERNMENT  [520 

which  the  major  part  of  its  territory  is  taken.1  And  the 
only  other  provisions  which  directly  affect  these  districts  at 
all,  are  authorizations  accorded  since  the  War,  to  the  Legis- 
latures of  three  States,  to  make  such  divisions.2  Prohibi- 
tion upon  special  legislation  designating  places  of  voting 
is,  however,  beginning  with  Indiana  in  1851,  common.3 

1  Conn.  Am.  1876,  xviii. 

Cf.  also  the  obsolete  Virginia  provision  requiring  the  division  of  the 
more  populous  urban  districts  into  wards   (Va.  Const.  1850,  iii,  2). 

2  In    Maine    (Am.    1869,   xiv — Amended   Const,   ix,    16),   only  towns 
having   over   4,000   inhabitants,   or   having    voters    residing   upon   an 
island,  may  be  divided  into  "  voting  districts  ". 

In  Massachusetts  (Am.  1885,  xxix)  any  town,  and  in  South  Caro- 
lina (Const.  1895,  vii,  13)  any  county,  may  be  divided. 

3  In  twenty-three  States  to-day.     California  and  Kentucky,  however, 
permit  special  legislation  when  new  counties  are  organized;  Alabama, 
when  county  lines  are  changed. 

Ind.  Const.  1851,  iv,  *22,  23. 

Oreg.  Const.  1857,  iv,  23. 

Md.  Const.  1864,  iii,  32   (until  1867). 

Nev.   Const.   1864,  iv,  20. 

Fla.  Const.  1868,  v,  17;  1885,  iii,  20. 

W.  Va.  Const.  1872,  vi,  39. 

Pa.  Const.  1873,  iii,  7- 

N.  Y.  Am.  1874;  Const.  1894,  iii,  18. 

Neb.  Const.  1875,  iii,  15. 

Mo.  Const.  1875,  v,  53. 

Tex.  Const.  1876,  iii,  56. 

Colo.  Const.  1876,  v,  25. 

Cal.   Const.   1879,  iv,   25. 

La.  Const.   1879,  46;   1898,  48. 

Minn.  Am.  1881,  iv,  33. 

Mont.  Const.  1889,  v,  26. 

Ida.  Const.  1889,  iii,  19. 

Wyom.  Const.  1889,  iii,  27. 

Minn.  *  Am.  1892,  iv,  33. 

Ky.   Const.   1890,   59. 

Ala.  Const.   1901,   104. 

Va.  Const.  1902,  64. 

Okla.  const.  1907,  v,  46. 

*N.  Mex.  Const.  1911,  iv,  24. 


FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 


129 


3.    EDUCATIONAL  DISTRICTS 

"  School  districts,"  under  this  name,  first  appear  in  the 
Michigan  and  Texas  instruments  of  1835  and  1845;  m  s'lx 
other  Western  States  before  the  War;  to-day,  in  thirty- 
seven  States;1  larger  educational  districts  also,  since  the 
War,  in  Virginia,  California,  Idaho  and  Oklahoma.2  Before 
the  War,  no  restrictions  upon  the  power  of  the  Legislature 
to  utilize  other  divisions  for  these  purposes,  or  to  make 
special  divisions  of  its  own,  were  imposed.  The  few  pro- 
visions adopted  since  have  been  principally  in  the  South. 

For  minor  divisions,  Alabama  led  off,  in  1867,  w^  a 
provision  empowering  its  State  Board  of  Education  to  make 
such  districts,  distinct  from  the  township;  after  eight  years, 
the  dropping  of  this  provision  left  the  Legislature  in  full 
control;  in  1901,  however,  the  establishment  of  separate 

It  may  be  that  under  one  or  two  of  the  older  instruments,  where 
no  recognition  of  special  voting  districts  was  made,  their  formation 
was  impossible.  In  the  States  where  they  are  permissible,  other  minor 
divisions,  notably  judicial  precincts  and  city  wards,  are  frequently 
utilized  for  this  purpose,  resulting  in  the  former  case  in  much  con- 
fusion of  terminology.  Broadly  speaking,  the  term  "  election  dis- 
trict "  is  in  use  in  most  of  the  States  from  Maryland  north,  in  Illinois 
and  a  few  States  to  the  north  and  west  of  this,  and  in  Mississippi.  In 
most  of  the  other  States  "  precinct,"  "  election  precinct,"  or  "  polling 
precinct"  is  employed.  In  Maryland  "precinct"  is  used  to  denote 
the  subdivisons  of  Baltimore  wards  for  voting  purposes. 

1  Mich.   1835,  Tex.  1845,  Iowa  1846,  111.  and  Wise.   1848,   Cal.  1849, 
Oreg.  1857,  Kans.  1859,  Nev.  1864,  Mo.  1865,  Ala.  1867  (omitted  1875- 
1901),  N.  C,  S.  C,  Fla.,  Miss,  and  Ark.  1868,  Ga.  1868  (omitted  1877 
—  *  1904),  Va.  1870,  W.  Va.  1872,  Pa.  1873,  Neb.  1875,  Colo.  1876,  and 
all  States  admitted  since  Colorado,  from  the  beginning.    Also,  Conn. 
1877,  Minn.  *  1886,  Ky.  1890,  Del.  1897,  La.  1898. 

The  missing  States  are  five  in  New  England,  New  York,  New  Jersey, 
Maryland  (mentioned  1864-67),  Ohio,  Indiana  and  Tennessee. 

2  Virginia,   1870-74  (no  title)    and  again  since  1902  (*'  School  Divi- 
sions"). 

California,  since  1879;  Idaho,  since  1889;  and  Oklahoma,  since  1907 
("Board  of  Education  Districts"). 


130  TERRITORIAL  BASIS  OF  GOVERNMENT  [$22 

districts  by  special  legislation  was  forbidden.  North  Caro- 
lina, since  1868,  requires  counties  to  be  divided  by  county 
commissioners.  South  Carolina,  since  the  same  date,  re- 
quires the  Legislature  to  provide  for  the  formation  of  school 
districts,  without  restrictions,  at  first;  since  1895,  these 
districts  must  be  subdivisions  of  counties,  "  as  compact  in 
form  as  practicable  having  regard  to  natural  boundaries  ", 
and  containing  from  9  to  49  square  miles  except  in  cities  of 
over  10,000  inhabitants;  and  incorporation  by  special  act 
is  forbidden.  Virginia,  from  1870  till  1902,  required  the 
division  of  townships,  or.  of  the  "  magisterial  districts " 
into  which  these  were  changed,  into  compactly  located 
school  districts,  containing  not  less  than  100  inhabitants; 
since  1902,  however,  the  formation  of  school  districts,  dis- 
tinct from  the  magisterial  district,  is  entirely  at  the  discre- 
tion of  the  Legislature.  In  West  Virginia,  since  1872,  no 
"  independent  free  school  district  "  is  to  be  created,  except 
by  a  majority  Referendum  in  the  school  district  or  districts 
out  of  which  it  is  to  be  created.  Special  legislation  "  chang- 
ing school  districts "  was  forbidden  by  Pennsylvania  in 
1873;  changing  their  lines,  by  Missouri  in  1875;  erecting 
them  or  changing  their  lines  by  Minnesota  in  1892  and  by 
Delaware  in  1897.  Cities  of  the  first  and  second  class  were 
constituted  separate  school  districts  in  Utah  in  1895,  and 
the  city  and  county  of  Denver  was  so  constituted  in  1902 
in  Colorado.1 

*Ala.  Const.  1867,  xi,  6  (until  1875);  1901,  104,  par.  22. 

N.  C.  Const.  1868,  ix,  3;  1876,  ix,  3. 

S.  C  Const.  1868,  x,  3;  1895,  iii,  34,  par.  5;  xi,  s 

Va.  Const.  1870,  vii,  3;  Am.  1874;  1902,  133. 

W.  Va.  Const.  1872,  xii,  10. 

Pa.  Const.  1873,  iii,  7. 

Mo.  Const.  1875,  v,  53. 

Minn.  *Am.  1892,  iv,  33. 

Del.  Const.  1897,  ii,  19. 


523]      FOR  SPECIAL  ADMINISTRATIVE  PURPOSES        i$i 

For  major  educational  divisions  the  use  of  the  county 
has  often  been  prescribed.  Virginia,  however,  between 
1870  and  1874,  in  imitation  of  its  rule  requiring  the  at- 
tachment of  a  county  containing  under  8,000  inhabitants, 
to  a  contiguous  county,  for  certain  judicial  purposes,  per- 
mitted attachment,  under  the  same  conditions,  for  the 
election  of  a  Superintendent  of  Schools.  So  California, 
since  1879,  has  permitted  the  grouping  of  contiguous  coun- 
ties for  this  purpose.  In  1902  Virginia  also  revived  special 
treatment  in  more  elaborate  form;  since  this  year,  the 
State  Board  of  Education  is  empowered  to  divide  the  State 
into  "  school  divisions,"  comprising  not  less  than  one 
county  or  city  each,  no  county  or  city  to  be  divided.1 

4.    INTERNAL    IMPROVEMENT    DISTRICTS 

"  Highway  districts  "  are  mentioned  in  Michigan  since 
1850,  as  divisions  of  townships;  since  1908,  however,  these 
may  be  replaced  by  road  districts  of  any  size.  In  West 
Virginia,  for  a  time,  "  precinct  "  divisions  of  townships  are 
mentioned,  in  connection  with  roads.  In  Virginia,  town- 
ships, while  they  lasted,  were  required  to  be  divided  into 
"  road  districts  ".  These  are  mentioned  in  Washington  as 
divisions  of  counties.2 

One  special  levee  district  was  mentioned  in  Louisiana 
in  1868;  since  then  districts,  the  authorities  of  which  may 
contract  indebtedness  or  levy  assessments  or  taxes,  for 
various  purposes  of  internal  improvement,  have  appeared 

Utah  Am.  1900,  x,  6. 

Colo.  Am.  1902,  xx,  7. 

1  Va.  Const.  1870,  vii,  I  (until  1874)  ',  IQO2,  132. 

Cal.  Const.  1879,  ix,  3. 

3  Mich.  Const.  1850,  xi,  I ;  *  1908,  viii,  18,  26. 

W.  Va.  Const  1862,  vii,  2  (until  1872). 

Va.  Const.  1870,  xii,  4  (until  1874) . 

Wash.  Const.  1889,  xi,  6. 


132  TERRITORIAL  BASIS  OF  GOVERNMENT  [524 

in  nine  States  in  all.  In  most  cases  these  districts  are 
merely  mentioned,  in  connection  with  a  restriction  upon 
their  corporate  powers,  or  there  is  a  mere  authorization  to 
the  Legislature  to  provide  for  them.  In  Louisiana,  how- 
ever, the  power  to  organize  levee  districts  is  excepted  from 
the  prohibition  of  special  legislation  affecting  corporations 
—includes  the  power  to  create,  with  the  concurrence  of  an 
adjacent  State  or  States,  districts  lying  partly  outside  the 
State — and  terminates  when  the  Federal  government  shall 
assume  permanent  control  over  levees.  In  Mississippi  only 
two  specified  levee  districts  seem  to  be  authorized,  and 
boundaries  may  not  be  changed  without  four  weeks'  notice 
of  the  bill,  in  the  county  containing  the  domicile  of  the 
levee  commissioners,  and  reference  to  an  appropriate  com- 
mittee in  each  house.  South  Dakota,  finally,  provides  that 
no  "  county,  municipal  corporation  or  civil  township  " — 
since  1902,  also  no  "district  or  other  subdivision  "-—may 
be  included  in  such  special  bonding  district,  except  by  ma- 
jority Referendum.1 

Two  other  States  mention,  or  authorize,  "  drainage  dis- 
tricts ",  without  mention  of  financial  powers.2 

1  Louisiana,  "Levee  districts",   Const.   1868,   149;   18/9,  46,  214-216; 
1898,  48,  239-241.     "Lrainage  districts,"  Const.   1898,  281;  Am.   1904, 
1906. 

Illinois,  "Drainage  districts"  (including  care  of  levees).  Am.  1878, 
iv,  31- 

Mississippi,  "  Levee  districts,"  Const.  1890,  228,  234. 

Kentucky,  "  Taxing  districts,"  Const.  1890,  157  et  seq. 

South  Dakota,  Districts  or  subdivisions  for  providing  water,  Am. 
1896,  xiii,  4;  for  providing  water  and  sewerage,  Am.  1902. 

California,  "  Irrigation  and  Reclamation  Districts,"  Am.  1902,  xiii, 
itf  [sic]. 

Texas,  Districts  for  levee,  irrigation,  drainage,  navigation,  or  road 
purposes,  Am.  1904,  iii,  52. 

Oklahoma,  "  Improvement  Districts,"   Const.   1907,  xvi,   i. 

Iowa,  *  Am.  1908,  i,  18. 

2  S.  D.  *Am.  1906,  *N.  Mex.  Const.  1911,  xvi,  4. 


FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 
5.    MINOR    ADMINISTRATIVE    DISTRICTS 

West  Virginia's  "Schedule",  in  1872,  shows  that  "as- 
sessment districts,"  as  divisions  of  counties,  were  in  exist- 
ence at  that  time;  under  the  new  instrument  they  were  not 
expected  to  continue.  Florida,  however,  in  1885,  expressly 
required  the  Legislature  to  authorize  the  County  Commis- 
sioners to  divide  counties  into  "  taxation  districts  "  of  the 
same  general  nature.1 

"  Water  districts,"  coordinate  with  counties  and  urban 
districts,  are  mentioned  in  Idaho.2 

6.   CONSERVATION  DISTRICTS 

California,  in  1879,  reserved  tide-lands,  within  two  miles 
of  an  incorporated  city  or  town,  from  sale  to  private  per- 
sons. Washington,  ten  years  later,  provided  that  commis- 
sioners should  determine  the  boundaries  of  such  lands,  to 
be  from  50  to  600  feet  wide,  and  extend  for  one  mile  on 
each  side  of  the  city.  Of  somewhat  similar  nature  is  a  re- 
quirement, also  made  in  this  State,  that  public  lands  lying 
in  any  incorporated  city,  or  within  two  miles  of  its  boun- 
dary, shall  be  sold  only  under  specially  provided  regula- 
tions. Wyoming  requires  the  State  to  be  divided  into 
four  "  water  divisions "  for  the  administration  of  the 
natural  water  supply  of  the  State.  And  California,  since 
1902,  authorizes  the  division  of  the  State  into  "  fish  and 
game  districts  ".a 

7.    POLICE  DISTRICTS 

Special    districts    for   the   administration    of   the   police 

1  W.  Va.  Const.  1872,  Sched.  9. 
Fla.  Const.  1885,  viii,  7. 

2  Idaho  Const.  1889,  xv,  2. 

3Cal.  Const.  1879,  xv,  3;  Am.  1902,  iv,  25^  [sic]. 
Wash.  Const.  1889,  xv.  I ;  xvi,  4. 
Wyom.  Const.  1889,  viii,  4. 


TERRITORIAL  BASIS  OF  GOVERNMENT  [526 

power  of  the  State  are  rarely  found.  In  Texas,  since  1891, 
the  County  Courts  are  authorized  to  divide  counties  into 
local-option  districts.  In  Delaware,  on  the  other  hand,  the 
city  of  Wilmington,  the  rest  of  Newcastle  county,  and 
each  of  the  other  two  counties  of  the  State,  are  specified  as 
local-option  districts. 

Idaho  mentions  "  organized  mining  districts  ".  Alabama 
forbids  special  legislation  "  establishing  stock  districts." 
Oklahoma  requires  the  creation  of  mining  districts  for  in- 
spection purposes.1 

8.    SUMMARY 

The  significance  of  these  special  districts,  resorted  to 
with  increasing  frequency  in  late  years,  lies  in  the  extent 
to  which  we  are  departing  from  our  original  system  of 
administering  State  government  by  counties.  After  having 
developed  elaborate  schemes  for  restricting  Legislative  con- 
trol of  county  lines,  we  now  tend  more  and  more  to  ignore 
these  quasi-permanent  divisions.  We  entrust  the  discharge 
of  the  more  recently  developed  functions  of  government 
to  central  authorities,  without  any  territorial  division  at 
all.  Or  we  establish  new  divisions,  usually  as  compounds 
or  as  subdivisions  of  the  existing  counties,  but  other- 
wise with  few  restrictions  upon  legislative  control. 
The  number  of  such  districts  which  actually  exist  is  of 
course  far  greater  than  the  number  which  have  received 
in  some  way  constitutional  recognition.  From  the  point 
of  view  of  artistic  symmetry  our  present  system  of  terri- 
torial divisions  thus  leaves  much  to  be  desired.  District 

1  Tex.  Am.  1891,  xvi,  20. 
Idaho  Const.  1889,  xv,  3. 
Del.  Const.   1897,  xiii. 
Ala.  Const.  1901,  104,  par.  23. 
Okla.  Const.   1907,  vi,  25. 


527]       FOR  SPECIAL  ADMINISTRATIVE  PURPOSES 

overlaps  district  in  a  manner  as  difficult  for  the  voter  to 
understand  as  it  is  for  the  student  to  expound.  The  opera- 
tions of  government  are  to  this  extent  rendered  more  tech- 
nical, and,  like  the  rules  of  judicial  procedure,  thrown 
into  the  hands  of  an  expert  class.  Only  that  being  whom 
we  all  abuse  and  all  utilize — the  professional  politician,  who 
gives  his  whole  life  to  the  work — can  carry  a  working 
conception  in  his  head  of  the  way  in  which  all  these  divisions 
coordinate  with  one  another  in  practice. 

This  state  of  affairs  is  undoubtedly  unfortunate.  Be- 
lievers in  the  democratic  theory  of  government  must  de- 
plore any  circumstance  which  tends  in  practice  to  destroy 
that  equality  of  political  influence  which  they  would  like  to 
see  belong  to  every  voter.  It  is  true  that  the  American 
ideal — complete  abolition  of  class  government  of  every  sort 
—is  one  which,  like  all  high  ideals,  never  can  be  reached. 
However  highly  the  mass  of  the  voters  may  be  educated, 
there  will  always  be  a  class,  more  highly  educated  along 
special  lines  than  they,  who  will  deserve,  and  obtain,  politi- 
cal weight,  out  of  all  proportion  to  their  actual  numbers. 
The  fact  that  an  ideal  cannot  be  reached,  however,  makes 
it  none  the  less  desirable  to  cherish  and  pursue.  The  ex- 
pert's inherent  advantage  needs  not  to  be  enhanced  by 
artificial  means.  Simplicity  of  operation  is  an  end  of  value 
in  itself,  and  rigging  the  ship  of  State  with  superfluous 
ropes  makes  us  entirely  too  dependent  upon  those  who 
"  know  them  ".  At  the  same  time,  it  must  be  admitted  that 
the  problem  of  simplifying  our  system  of  territorial  divi- 
sions is  not  an  easy  one  to  solve.  The  county  system  is  not 
well  adapted  to  the  discharge  of  our  newer  governmental 
needs.  Yet  the  abolition  of  counties,  long  in  use,  for 
judicial  purposes,  would  throw  endless  confusion  into  our 
system  of  records.  Probably  the  best  we  can  do  is  to  see  to 
it  that  the  newer  administrative  units,  large  and  small,  are 


TERRITORIAL  BASIS  OF  GOVERNMENT  [528 

harmoniously  related  among  themselves,  however  they  stand 
with  relation  to  counties.  It  should  not  be  forgotten,  too, 
that  inequalities  and  overlappings  contain  at  least  this  con- 
crete good :  by  their  very  artificiality,  they  accustom  voters 
to  regard  themselves  primarily  as  citizens  of  the  whole 
State,  rather  than  of  a  self-centered  locality. 


CHAPTER  VII 
DISTRICTS  OF  REPRESENTATION  IN  THE  LOWER  HOUSE 

THE  term  "  apportionment ",  originally  signifying  the 
distribution  of  representatives  among  permanently-estab- 
lished administrative  districts,  has  gradually  been  extended 
to  include  the  definitions  of  temporary  districts  ,for  this 
special  purpose.  The  two  phases  of  the  topic  cannot  be 
satisfactorily  separated  in  discussion. 

During  the  Colonial  period,  outside  of  three  New  Eng- 
land Colonies,  both  the  territorial  unit  and  the  number  of 
representatives  to  which  it  was  entitled  were  determined 
entirely  by  the  active  government  itself.  In  practice,  the 
New  England  unit  was  the  town;  elsewhere,  the  English 
system  of  a  mixed  county  and  borough  basis  usually  pre- 
vailed. Over-represented  minorities  had  naturally  not  been 
eager  to  surrender  their  provisions,  so  that  nowhere,  at  the 
time  the  Revolution  occurred,  did  the  number  of  represen- 
tatives which  each  district  returned  bear  any  uniform  rela- 
tion to  the  number  of  electors  who  returned  them.  Indeed, 
it  may  be  said  that  the  principle  of  proportionate  represen- 
tation of  localities  was  only  just  beginning  to  develop  at 
this  time.  As  with  the  equal  representation  of  the  States 
in  the  Federal  Senate  to-day,  it  doubtless  seemed  to  many 
that  separate  districts,  rather  than  the  entire  population  of 
the  Colony,  were  being  represented  in  the  Colonial  Assem- 
bly, and  that  the  number  of  voters  which  each  district  might 
happen  to  contain  had  little  to  do  with  the  question.  With 
the  subsidence  of  strong  local  feeling,  this  attitude,  except 
as  between  town  and  country,  has  gradually  disappeared, 
529]  137 


!38  TERRITORIAL  BASIS  OF  GOVERNMENT  [530 

and  in  many  cases  we  have  gone  to  the  opposite  extreme, 
placing  a  decidedly  exaggerated  emphasis  upon  the  im- 
portance of  a  mathematically  accurate  system. 

Since  the  Revolution,  the  capital  invention  in  the  treat- 
ment of  the  problem  has  proved  to  be  a  Pennsylvania  pro- 
vision, adopted  in  September,  1776,  requiring  the  Legisla- 
ture to  redistribute  the  representation,  in  accordance  with 
the  proportionate  principle,  at  intervals  of  seven  years,  and 
depriving  it  of  all  control  at  other  periods.  It  will  be  con- 
venient to  discuss,  first,  early  systems  which  do  not  contain 
this  feature  of  obligatory  periodic  reapportionment ;  sec- 
ond, those  systems  in  which  the  main  features  of  the  Penn- 
sylvania plan  have  been  retained;  third,  later  systems  in 
which  the  plan  has  been  modified  or  supplemented  in  im- 
portant particulars.  Under  each  head,  a  general  chrono- 
logical order  will  be  followed. 

I.    EARLY    SYSTEMS    OF    REPRESENTATION 

Under  the  original  Connecticut  Charter,  surviving  until 
1818,  not  more  than  two  persons  might  be  returned  from 
each  "  place,  Towne  or  Citty  ".  By  the  Constitution  adopted 
in  this  year,  "towns  ",  used  obviously  in  a  sense  which 
would  include  cities,  were  to  return  the  same  number  "  as 
at  present  practiced  and  allowed  "  —that  is,  either  one  or 
two.  Since  1874,  every  town  which  contains,  by  the  last 
United  States  census,  a  population  of  5,000,  is  entitled  to 
two  representatives.  Smaller  towns  are  confirmed  in  their 
historic  claim  to  either  one  or  two,  irrespective  of  their  size. 
Newly  incorporated  towns  constitute  separate  election  dis- 
tricts of  the  town  from  which  the  major  portion  of  their 
territory  was  taken,  until  each  section  contains  2,500  in- 
habitants. The  gross  discrimination  against  the  larger 
urban  districts  requires  no  comment.1 

1  Conn.  Charter,  1662,  Thorpe,  p.  531 ;  Const.  1818,  iii,  3 ;  Am.  1874, 
xv ;  1876,  xviii. 


531  ]       REPRESENTATION  IN  THE  LOWER  HOUSE 

Under  the  Rhode  Island  Charter,  until  1842,  the  Legis- 
lature was  expressly  authorized  to  determine  what  "places, 
townes  or  cityes  "  should  be  represented,  by  not  more  than 
two  persons  each;  Newport,  however,  was  guaranteed  the 
right  of  returning  not  more  than  six;  Providence,  Ports- 
mouth and  Warwick,  not  more  than  four  persons  each. 
Since  the  adoption  of  a  State  Constitution  the  Legislature 
has  been  authorized,  but  not  required,  to  reapportion  repre- 
sentation after  any  Census,  State  or  Federal — that  is  to  say, 
whenever  it  pleases — under  the  following  rule :  At  least  one 
member  for  each  town  or  city;  one  additional  member  for 
every  fraction  of  the  "  ratio  ",  exceeding  one-half;  no  town 
or  city  to  have  more  than  a  sixth  of  the  total  number,  lim- 
ited to  72 — or,  since  1909,  one-fourth  of  the  total  number, 
limited  to  100;  this,  in  spite  of  the  fact  that  Providence  now 
contains  nearer  one-half  than  one-third  of  the  population. 
Towns  and  cities,  originally,  might  not  be  divided;  since 
1909,  however,  each  must  be  divided,  at  once,  and  may  be 
divided,  at  any  time,  into  single-member  districts,  "  as 
nearly  equal  in  population,  and  as  compact  in  territory  as 
possible."  1 

The  next  oldest  provision,  in  force  after  the  Revolution, 
was  that  of  the  Massachusetts  Charter,  revived  by  the  Pro- 
vincial Congress  in  1775,  under  the  advice  of  the  Conti- 
nental Congress,  whereby  the  Legislature  was  authorized  to 
determine  what  number  each  "  County  Towne  and  Place  " 
should  return.  Under  this  authority  the  Legislature  in- 
troduced a  system  of  proportional  representation  which,  in 
1780,  was  crystallized  in  the  following  Constitutional  rule: 
Every  town  already  incorporated  to  return  at  least  one 
member,  but  no  new  town  to  be  incorporated  with  the  right 
of  representation  unless  it  contains  at  least  150  "  ratable 

1  R.  T.  Charter,  1663,  Thorpe,  pp.  3214,  3215 ;  Const.  1842,  v,  i ;  *  1909,  xiii. 


I4o  TERRITORIAL  BASIS  OF  GOVERNMENT  [532 

polls  " ;  larger  towns  to  return  one  additional  member  for 
every  225  polls  over  this  number.  This  lasted  until  1836, 
when  it  was  replaced  by  a  modified  form  of  the  Pennsyl- 
vania provision.1 

New  Hampshire,  in  its  original  crude  instrument,  of 
January,  1776,  also  left  everything  to  the  Legislature, 
which,  in  practice,  also  introduced  a  roughly  proportional 
system.  In  1784  the  Massachusetts  plan  was  adopted,  with 
the  following  modifications :  The  unit  was  the  "  town,  par- 
ish, or  place  entitled  to  town  privileges  " ;  the  "  mean  in- 
creasing number  "  was  300  polls,  instead  of  225 ;  the  prob- 
lem of  undersized  units  (units  containing  less  than  150 
polls),  new  and  old,  was  met  by  requiring  the  Legislature 
to  "  class  "  them  into  groups,  returning  one  member,  the 
elections  to  be  held  in  each  unit  in  annual  succession,  begin- 
ning with  the  largest;  if  the  situation  of  an  undersized 
unit,  however,  was  such  as  to  render  this  "  very  incon- 
venient ",  the  Legislature  was  authorized,  upon  the  applica- 
tion of  a  majority  of  the  voters,  to  accord  it  a  separate 
representative.  Finally,  since  1877,  city  wards  are  substi- 
tuted in  the  list  of  units  for  parishes ;  600  inhabitants,  under 
the  last  Census,  State  or  Federal,  are  taken  for  the  mini- 
mum, and  1,200  for  the  increasing  number,  with  the  pro- 
viso that  towns  are  not  to  be  divided,  nor  wards  changed, 
in  such  a  way  as  to  increase  representation.  The  "  classi- 
fying "  system  remains,  in  general,  as  before,  but  for  in- 
conveniently situated  units  is  elaborated  somewhat.  "  Since 
they  cannot  send  part  of  a  person,  all  of  the  time,  why  not 
have  them  send  all  of  a  person,  part  of  the  time?"  is  a  very 
natural  query,  considering  the  spirit  of  the  provision;  and 

1  Mass.  Charter,   1691,  Thorpe,  p.   1878 ;  Const.   1780,  part  II,  ch.  i, 
iii,  2  (until  1836). 


533]       REPRESENTATION  IN  THE  LOWER  HOUSE         I4I 

this  absurd  practice,  possible  under  the  rule  as  originally 
framed,  has  accordingly  now  been  made  obligatory.1 

Two  months  after  New  Hampshire's  first  instrument, 
that  of  South  Carolina  appeared,  specifying  twenty-eight 
parishes  and  (administrative)  districts  among  which  its 
representatives  were  distributed,  in  amounts  ranging  from 
4  to  30.  In  a  second  instrument,  adopted  two  years  after 
this,  one  six-member  parish  was  divided  into  districts  re- 
turning three  members  each,  and  another  into  districts  re- 
turning four  and  two,  respectively;  the  voice  of  Pennsyl- 
vania is  also  heard  in  a  provision  requiring  reapporfionment 
"  according  to  the  particular  and  comparative  strength  and 
taxable  property  of  the  different  parts  "  of  the  State,  at 
the  expiration  of  seven  years,  and  every  fourteen  years 
thereafter.  It  should  be  noted,  however,  that  neither  of 
these  instruments  was  adopted  by  a  Convention  elected  for 
this  purpose;  they  were  therefore  adjudged  by  the  Courts 
to  be  merely  declarations  of  policy,  not  binding  upon  the 
Legislature.  Control  over  apportionment  was  first  actually 
taken  from  this  body,  in  most  emphatic  manner,  by  the 
Constitution  of  1790,  which  specified  forty-four  "election 
districts  "  by  name,  among  which  representatives,  from  2 
to  15  in  number,  were  permanently  apportioned.  This 
lasted  until  1808,  when  the  periodic  requirement  was  again 
introduced,  in  a  form,  which,  although  very  peculiar,  may 
best  be  considered  in  connection  with  the  general  move- 
ment.2 

Next,  Virginia,  in  June,  followed  English  precedent,  with 
some  modifications.  Two  representatives  were  accorded 
to  each  county,  and  to  the  district  of  West  Augusta;  one 

*N.   H.  Const.  1776,  Thorpe,  p.  2453;   1786,  Thorpe,  p.  2461;   1792, 
part  ii,  9,  10,  n;  Am.  1877. 
8S.  C.  Const.  1776,  ii ;  1778,  13,  IS;  I79A  i,  3  (until  1808). 


I42  TERRITORIAL  BASIS  OF  GOVERNMENT  [534 

each  to  Williamsburgh  and  Norfolk,  and  to  other  cities 
or  boroughs  to  which  the  Legislature  might  allow  particular 
representation ;  but  if  any  city  or  borough  should  for  seven 
years  contain  less  than  one-half  the  number  of  electors  in 
some  one  county,  then  the  right  of  representation  should 
cease.  This  provision,  which  lasted  until  1830,  is  interest- 
ing as  being  the  first  application  of  the  traditional  septen- 
nary  period  of  the  English  Parliament  to  purposes  of  pro- 
portional representation.1 

Next,  New  Jersey,  in  July,  made  a  provisional  apportion- 
ment of  six  members  to  each  county,  but  authorized  the 
Legislature  to  change  the  number  or  proportion  at  any  time, 
"  on  the  principle  of  more  equal  representation  ".  This 
provision,  in  force  until  1844,  contains  the  gerrn  of  that 
idea  which  Pennsylvania,  two  months  later,  was  to  develop 
fully.2 

Delaware,  in  the  same  month  as  Pennsylvania,  gave  a 
flat  representation  of  seven  to  each  of  its  three  counties. 
After  1792,  the  number  could  be  increased  by  a  two-thirds 
vote  of  the  Legislature.  This  lasted,  without  change  even 
in  the  number  of  counties,  until  1897,  by  which  time  the 
county  containing  Wilmington  was  greatly  under-repre- 
sented as  compared  with  the  other  two,  while  that  portion  of 
Newcastle  county  which  lies  outside  of  Wilmington  was 
hopelessly  submerged  by  the  city.  The  change  made  was 
to  establish  thirty-five  representative  districts,  each  return- 
ing a  single  member :  ten  districts  in  each  county,  excluding 
Wilmington,  and  five  in  that  city.  The  discrimination 
against  Wilmington,  which  contains,  like  Providence,  more 
nearly  one-half  than  one-third  of  the  entire  population,  is 
emphasized  by  the  rule  that  the  boundaries  in  general  are 

1Va.  Const.  1776,  Thorpe,  p.  3815   (until  1830). 
8N.  J.  Const.  1776,  3  (until  1844). 


535]       REPRESENTATION  IN  THE  LOWER  HOUSE 

absolutely  fixed  in  administrative  and  other  lines  "  as  the 
same  are  now  established  and  located  ",  except  in  the  case 
of  the  exterior  boundaries  of  the  Wilmington  districts. 
These  move  out,  as  the  city  expands,  the  extension  of  the 
interior  lines  being  blocked  out  beforehand.  Thus  under 
no  circumstances  can  the  city  ever  return  more  than  one- 
seventh  of  the  total  number,  while  the  diminished  county 
districts,  unless  they  are  absolutely  wiped  out,  will  retain 
their  separate  representation.1 

Maryland,  two  months  later,  preferred,  to  the  Pennsyl- 
vania plan,  that  of  its  neighbor  to  the  south,  with  slight 
modifications.  The  representation  of  each  county  was  fixed 
at  four,  instead  of  two,  as  in  Virginia;  only  two  specified 
urban  districts,  Annapolis  city  and  Baltimore  town,  were 
accorded  representation,  with  two  members  each;  the  loss 
of  the  right  to  return  this  number,  in  case  of  a  diminished 
voting  population  lasting  for  seven  years,  was  made  appli- 
cable to  Baltimore  only;  and  the  right  would  attach  again, 
in  case  the  population  should  again  equal  one-half  that  of 
some  county.  This  lasted  until  i837-2 

North  Carolina,  in  December,  and  until  1835,  allotted  two 
members  to  each  county,  and  one  each  to  six  specified 
towns.3 

Georgia,  the  following  spring,  allotted  two  members  to 
one  town,  four  to  another  (Savannah),  fourteen  to  one 
county,  ten  to  each  of  five  other  specified  counties.  For 
two  other  specified  counties,  and  for  those  subsequently 
laid  out,  a  sliding  scale  was  adopted :  If  10  electors,  one 
member;  if  30,  two;  if  40,  three;  if  50,  four;  if  80,  six;  if 
TOO,  ten.  In  1789,  this  was  changed  to  a  fixed  representa- 

^el.  Const.  1776,  3;  1792,  ii,  2;  1831,  ii,  2;  1897,  ii,  2. 

8Md.  Decl.  of  Rights,  1776,  37;  Const  1776,  2,  4,  5  (until  1837). 

8N.  C.  Const.  1776,  3  (until  1835). 


TERRITORIAL  BASIS  OF  GOVERNMENT          [536 

tion,  varying  from  two  to  five,  for  each  of  eleven  specified 
counties;  in  1795,  twenty  counties  were  named,  to  return 
two,  three,  or  four  members  each;  only  three  years  later, 
however,  this  was  abandoned  for  the  periodic  system.1 

Two  months  after  Georgia,  New  York,  the  last  of  the 
original  thirteen  States  to  establish  a  working  system  of 
government,  followed  Pennsylvania's  lead,  and  so  did  every 
new  State  for  the  next  eighty  years,  with  the  single  excep- 
tion of  the  first  of  them,  Vermont.  In  spite  of  the  fact  that 
in  most  respects  this  State  followed  Pennsylvania  very 
closely,  the  New  England  traditions  as  to  town  representa- 
tion were  too  strong  to  be  overcome.  From  its  origin  until 
the  present  day,  every  "  inhabited  town  "  in  Vermont  has 
been  entitled  to  one  member  and  no  more,  except  during 
periods  of  seven  years  immediately  after  the  adoption  of  the 
successive  instruments,  when  towns  containing  eighty  tax- 
able inhabitants  were  entitled  to  two  members.2 

To  conclude:  During  the  period  of  the  Jacksonian  De- 
mocracy, the  twenty-four  States  in  the  Union  were  divided, 
from  the  point  of  view  of  area,  into  two  well-defined  groups. 
Sixteen  contained  30,000  square  miles  or  over;  the  other 
eight,  12,000  or  less.  By  the  close  of  the  year  1835 — say 
at  the  end  of  the  second  generation  after  the  outbreak  of  the 
Revolution — the  larger  States  had  all  adopted  some  variant 
of  the  Pennsylvania  plan;  none  of  the  smaller.  Massa- 
chusetts and  Maryland  came  ever  in  the  next  two  years; 
New  Jersey,  before  ten  years  had  elapsed;  the  remaining 
five  small  States,  however — Connecticut,  Rhode  Island,  New 
Hampshire,  Vermont  and  Delaware,  the  combined  area  of 
which  is  less  than  the  smallest  of  the  other  group — have 
clung  till  this  day  to  antiquated  systems  which,  in  four  cases 

1  Ga.  Const.  1777,  4,  5;  1789,  i,  6;  Am.  1795,  iii  (until  1798). 

2  Vt.  Const.  1777,  ch.  ii,  7,  16;  1786,  1793,  ch.  ii,  7,  8. 


537]       REPRESENTATION  IN  THE  LOWER  HOUSE 

out  of  the  five,  are  grossly  unjust  to  the  larger  centers  of 
population.  When  we  come  to  consider  the  upper  house, 
moreover,  we  shall  see  how  New  Jersey  and  Maryland 
offend  in  this  branch  of  the  Legislative  system. 

The  imperviousness  of  these  little  communities  to  the 
dominant  theory  of  representation  is  good  empirical  proof 
of  the  importance  of  mere  superficial  area  as  a  factor  in  the 
development  of  political  institutions.  Whether  the  domi- 
nant theory  is  itself  beyond  criticism  we  need  not  here  en- 
quire. To  those  who  regard  the  "  ignorant  vote  of  the 
great  cities  "  as  a  menace,  it  will  not  appeal;  the  fact  that 
in  a  few  crevices  and  crannies  of  the  Union  the  rural  popu- 
lation is  so  safely  entrenched  should  be  to  these  a  cause  of 
rejoicing.  A  majority  of  the  population — perhaps  because 
of  their  ignorance — will  rejoice,  rather,  that  the  crannies 
and  crevices,  are  so  few.  To  these,  the  attempt  to  enforce 
equal  representation  must  seem  a  praiseworthy  adherence 
to  the  Republican  principle,  as  always  understood.  They 
will  recall  with  wonder  the  distrust  once  felt  as  to  the  pos- 
sible permanence  of  Republics  of  large  size,  and  will  feel 
that  in  the  very  largeness  of  our  other  States  has  lain  their 
comparative  salvation. 

Without  entering  into  this  controversy,  this  much,  at 
least,  may  safely  be  said.  Between  little  States,  and  little 
faith  in  the  equal  capacity  of  all  men  for  self-government, 
some  inherent  harmony  seems  to  exist.  We  shall  see  that 
discrimination  against  urban  centers  is  by  no  means  confined 
to  these  small  States.  But  broad  belief  in  the  people  colors 
most  vividly  the  institutions  of  those  States  which  cover 
the  broadest  expanse  of  territory. 

II.    OBLIGATORY    PERIODIC   REAPPORTIONMENT 

Everywhere  except  in  the  instances  mentioned,  and  ex- 
cept in  Idaho  and  Arizona,  some  provision  looking  toward 


I46  TERRITORIAL  BASIS  OF  GOVERNMENT  [538 

a  comprehensive  periodic  reapportionment  has  been  made. 
The  period,  originally  of  seven  years,  was  placed  for  a  time 
as  low  as  two  years  in  Iowa,  and  as  high  as  twenty  years  in 
North  Carolina  and  Maryland;  under  the  influence  of  the 
Federal  Census  provision  it  has  finally  settled  down  to  ten 
years  in  twenty-five  States.  In  a  contiguous  group  of 
fourteen  States — Wisconsin,  Minnesota,  Iowa,  and  all  west 
of  the  Missouri  River,  north  of  the  37th  parallel  and  Cali- 
fornia— the  Federal  period  is  broken  into  two  parts,  usually 
of  five  years  each;  and  the  period  is  at  least  five  years, 
at  most  ten,  in  Maine,  and  is  six  years  in  Indiana.  The 
ten-year  period  is  usually,  though  not  always,  incidental 
to  the  use  of  the  Federal  Census  as  the  official  basis  for  the 
apportionment;  so  also  almost  invariably  in  the  North- 
western group,  where  an  intermediate  State  Enumeration  is 
required  in  addition.  In  Maine  and  Indiana,  however,  as 
well  as  in  five  of  the  existing  ten-year  provisions,  a  State 
Enumeration  is  the  only  basis.  Sometimes  either  Federal 
or  State  Census  may  be  used,  and  in  some  of  these  cases 
no  time-schedule  for  the  State  Census  is  prescribed;  New 
Jersey,  Maryland  and  Arkansas,  that  rs  to  say,  require  a 
reapportionment  after  the  Federal  Census,  but  also  permit 
one  after  a  State  Enumeration,  which  apparently  may  be 
made  at  any  time.1 

The  tendency  to  rely  upon  the  Federal  Census  is  con- 
nected with  a  growing  willingness  to  adopt  aggregate  popu- 
lation as  the  numerical  basis,  in  place  of  special  classes  of 
the  people,  such  as  the  Federal  government  could  not  be 
trusted  to  enumerate  separately.  The  most  logical  basis  for 
apportionment  is,  of  course,  the  number  of  qualified  electors ; 
and  although  the  practical  difficulty  of  ascertaining  this  has 
led,  in  all  except  four  States,  to  a  general  adoption  of  popu- 

1  For  details  regarding  period  and  census,  vide  p.  151,  note  I,  infra. 


539]       REPRESENTATION  IN  THE  LOWER  HOUSE 

lation,  free  from  qualifications  as  to  age  or  sex,  as  a  suffi- 
ciently accurate  measure,  in  several  States  the  exceptions  to 
manhood  suffrage  are  still  sufficiently  great  to  call  for 
similar  exceptions  in  the  enumeration  of  the  inhabitants. 
Six  different  ways  of  approaching  the  problem  may  ac- 
cordingly be  distinguished. 

The  original  method,  surviving  in  Tennessee,  Indiana, 
Massachusetts  and  Arkansas,  was  to  base  the  apportion- 
ment upon  the  number  of  qualified  electors,  in  terms,  or 
upon  the  number  of  persons  possessing,  in  a  general  way, 
suffrage  qualifications.1 

As  early  as  1778,  however,  South  Carolina  required  that 
both  the  number  of  white  inhabitants,  and  the  aggregate 
amount  of  taxable  property,  in  the  various  parts  of  the 
vState,  should  be  considered ;  the  details  of  this  double  stand- 
ard, or  "  mixed  basis  ",  as  it  came  to  be  called,  with  a 
change  from  the  aggregate  property  to  the  aggregate  taxes 
paid,  were  subsequently  carefully  worked  out,  and  re- 
mained in  force  in  this  State  until  the  War.2 

1 "  Taxables  "  in  Pennsylvania  until  1873 ;  "  taxable  inhabitants  "  in 
Tennessee  until  1834. 

The  New  England  "  ratable  polls "  will  be  recalled.  These  sur- 
vived in  Isiew  Hampshire,  until  1877,  and  in  Massachusetts,  for  four 
years  after  the  introduction  of  the  periodic  system,  until  1840. 

"Free  males  over  21"  in  Kentucky,  until  1850;  "white  males  over 
21  "  in  Ohio  and  Indiana,  until  *  1881 ;  "  free  white  males  over  21  "  in 
Missouri,  until  1849,  and  in  Arkansas,  until  the  War. 

"  Males  over  21  "  or  "  adult  males  "  in  Indiana  since  *  1881,  and  in 
Arkansas,  since  1874. 

Electors  or  legal  voters  in  ISjew  York  until  1821;  Louisiana  until 
1852;  Tennessee  since  1834;  Kentucky,  1850-00;  Massachusetts  since 
1857;  Mississippi,  1868-90.  This  was  the  basis  also  for  the  early  slid- 
ing scales  of  representation  provided  for  special  cases,  without  the 
periodic  requirement,  in  Virginia,  Maryland  and  Georgia. 

.'Registered  votes  in  Florida,   1868-85. 

2  The  rule  of  1808  prescribed,  as  one  basis,  the  white  population ;  as 
the  other,  the  average  taxes  raised  by  the  Legislature,  during  the  pre- 


!48  TERRITORIAL  BASIS  OF  GOVERNMENT  [540 

Then,  beginning  with  Georgia  in  1798,  comes  a  group  of 
States  in  which  property  considerations  do  not  figure,  but 
specified  classes  of  the  population,  usually  whites,  are  made 
the  basis;  this  system  was  swept  away  between  1850  and 
1870  everywhere  except  on  the  Pacific  coast,  where  it  sur- 
vived in  California  until  1879,  and  is  still  the  basis  in 
Oregon.1 

Meanwhile  Maine,  in  1819,  adopted  the  wiser  plan  of 
naming  the  entire  population,  except  for  certain  specified 
classes;  this  was  quickly  adopted  by  New  York,  as  a  sub- 
stitute for  its  original  electoral  plan,  and  has  come  to  be  the 
system  in  ten  States  in  all:  these  two,  North  Carolina,  a 
contiguous  group  of  four  Northwestern  States,  and  Nevada, 
California  and  Washington.2 

ceding  ten  years,  "whether  direct  or  indirect,  or  of  whatever  species, 
paid  in  each  [district],  deducting  therefrom  all  taxes  paid  on  account 
of  property  held  in  any  other  district,  and  adding  thereto  all  taxes 
elsewhere  paid  on  account  of  property  held  in  such  district." 

1 "  Free  whites "  in  Georgia,  Mississippi  and  Alabama,  until  the 
War.  "Whites"  in  Illinois  until  1870,  Michigan  until  1850,  Iowa 
until  1868,  California  until  1879,  Oregon  from  the  beginning,  West 
Virginia  until  1872,  Maryland,  1864-67.  "  Permanent  free  whites "  in 
Missouri,  1849-65. 

"  Federal  numbers "  (three-fifths  of  slaves  and  of  Indians  not 
taxed)  in  North  Carolina  and  Florida  until  the  War,  and  in  Maryland, 

1837-Si. 

"  Free  population,  excluding  Indians  not  taxed,  Africans,  and  de- 
scendants of  Africans,"  in  Texas  until  the  War.  The  Enumeration 
was  also  to  designate  particularly  the  number  of  qualified  electors. 

Whites  and  civilized  Indians  in  Michigan,  1850-70. 

2  The  excluded  classes  are : 

Aliens  and  Indians  not  taxed,  in  Maine  from  the  beginning,  and  in 
North  Carolina  since  the  War. 

Aliens,  paupers,  persons  of  color  not  taxed,  in  New  York,  1821-46; 
aliens,  and  persons  of  color  not  taxed,  1846-74;  aliens  only,  since  1874. 

Indians  not  taxed,  only  (the  Federal  basis,  since  the  adoption  of  the 
Fourteenth  Amendment),  in  Minnesota  from  the  beginning;  Indians 
uncivilized  or  members  of  a  tribe,  in  Michigan,  1870-1908. 


541]       REPRESENTATION  IN  THE  LOWER  HOUSE 

From  this  it  was,  of  course,  an  easy  step,  first  taken  by 
Massachusetts  in  1840,  to  make  simple  population  the 
basis;  if  we  include  Connecticut,  Rhode  Island  and  New 
Hampshire,  where  the  population  is  considered  in  greater 
or  less  degree,  although  not  under  a  periodic  reapportion- 
ment  plan,  one  more  than  half  the  States  in  the  Union  now 
have  this  system.1 

Finally  Virginia,  in  1850,  left  the  question  of  numerical 
basis  to  the  Legislature,  with  the  proviso  that  if,  at  the  first 
stated  period,  it  could  not  agree  upon  a  basis,  four  alterna- 
tive plans  for  both  houses  should  be  submitted  to  the  voters 
by  the  Governor,  with  repeated  election  between  the  two 
plans  receiving  the  highest  vote,  in  case  no  majority  should 
be  secured ;  the  basis  thus  determined  to  be  utilized  perma- 
nently thereafter.2  This  safeguarding  provision  was  dropped 
after  the  War,  but  the  basis  has  never  been  prescribed. 
There  is  also  no  actual  prescription  of  numerical  basis 
to-day  in  Mississippi,  Kansas,  or  Idaho,  for  either  house, 
nor  for  the  lower  house  in  North  Dakota,  though  in  all 

"  Persons  not  eligible  to  become  citizens  of  the  United  States  under 
the  naturalization  laws"  (Chinese)  in  California  since  1879. 

Indians  not  taxed,  soldiers  and  sailors  of  the  United  States  Army 
and  Navy,  in  Wisconsin,  Nevada,  Nebraska  and  South  Dakota,  and 
— with  the  addition  of  the  words  "in  active  service" — in  Washington. 

1  New  Jersey  since  1844,  Maryland  1851-64,  and  since  1867,  Ohio  since 
1851,  Louisiana  1852,  Missouri  1865,  Alabama  1867,  Iowa  and  South 
Carolina  1868,  Illinois  1870,  West  Virginia  1872,  Pennsylvania  1873, 
Texas  1876,  Georgia  1877,  Florida  1885,  Kentucky  1890,  Michigan  1908, 
Colorado,  Montana,  Wyoming,  Utah,  Oklahoma  and  New  Mexico, 
from  the  beginning.  So  also  Massachusetts  1840-57,  Arkansas  1868-74, 
and  (not  under  the  periodic  pjan)  Rhode  Island  since  1842,  Connecticut 
since  1874,  New  Hampshire  since  1877. 

2 The  four  Virginia  plans  were:  (t)  Basis  of  number  of  voters  for 
both  houses;  (2)  The  South  Carolina  "mixed  basis"  for  both 
houses;  (3)  Voter  basis  for  the  lower  house,  taxation  basis  for  the 
upper;  (4)  Voter  basis  for  the  lower,  "mixed  basis"  for  the  upper. 


TERRITORIAL  BASIS  OF  GOVERNMENT  [542 

these  States,  except  the  last,  population  is  doubtless  in- 
tended.1 

The  apportioning  body  has  usually  been  the  Legislature. 
In  a  few  States,  however,  where  the  rules  are  stringent, 
the  ministerial  duty  of  applying  them  has  been  vested  in 
other  organs:  In  Massachusetts,  from  1836  till  1857,  tne 
Governor  and  Council,  since  then,  the  Secretary  of  the 
Commonwealth;  in  Ohio,  since  1851,  the  Governor,  Auditor 
and  Secretary  of  State.  In  Maryland,  from  1837  till  1851, 
no  apportioning  body  was  mentioned,  the  number  of  dele- 
gates to  which  each  unit  was  entitled  being  based  upon  its 
population,  by  a  rule  intended  perhaps  to  be  self-executing; 
for  the  next  sixteen  years  the  Legislature  was  in  charge, 
but,  since  1867,  ^e  Governor.  Oklahoma  provides  that  the 
successive  determinations  involved  in  its  complicated  process 
shall  be  presented,  by  bill,  to  the  Governor  for  his  approval.' 
In  a  few  States,  also,  as  we  shall  see,  local  bodies  have  come 
to  participate  in  the  process. 

New  York,  in  1894,  followed  by  Oklahoma,  has  given  an 
important  sanction  to  the  apportionment  rules  by  providing 
that  the  result  is  subject  to  review  by  the  Supreme  Court 
at  the  suit  of  any  citizen,  under  such  reasonable  regula- 
tions as  the  Legislature  may  prescribe,  such  suits  to  be  given 
precedence  over  all  others,  and  the  Court,  if  not  in  session, 
to  convene  promptly.3 

Not  all  these  forty-one  States  have,  however,  retained  the 
essential  feature  of  the  Pennsylvania  plan :  a  requirement  of 
reapportionment  at  stated  intervals,  coupled  with  a  prohi- 
bition upon  reapportionment  at  other  times.  Among  the 

1  The  basis  was  also  not  actually  prescribed  in  Texas,  1868-76,  and 
Georgia,  1868-77. 

JOkla.  Const.  1907,  v,  10,  par.  (i). 

8N.  Y.  Const.  1894,  iii,  5;  Okla.  Const.  1907,  v,  10,  par.  (j).  Okla- 
homa omits  the  word  "  reasonable ". 


543]       REPRESENTATION  IN  THE  LOWER  HOUSE         ^ 

States  which  have  retained  the  original  idea,  in  nearly  its 
original  rigidity,  the  most  important  development  has  been 
a  departure  from  the  original  notion  of  permanent  local  dis- 
tricts, the  varying  political  importance  of  which  should  be 
reflected  in  the  varying  number  of  representatives  which 
each  shall  return  to  a  central  gathering.  In  place  of  this 
conception  of  the  Legislature  as  primarily  an  aggregation 
of  local  representatives,  we  have  come  to  regard  it  more 
as  a  plural  organ,  representing  the  voters  of  the  State,  as 
a  whole,  even  though  each  seat  in  it  is  filled  by  only  a  local 
section  of  the  voters.  The  successive  steps  by  which,  under 
the  influence  of  this  view,  we  have  tended  to  abandon  the 
permanent  district,  returning  a  variable  number  of  mem- 
bers, and  to  substitute  the  variable  district,  returning  always 
a  single  member,  are  of  considerable  interest.1 

1  The  details  affecting  period  and  census  may  best  be  assembled 
without  regard  to  other  distinctions  between  the  systems. 

Omitting  special  reapportionments,  required  at  shorter  intervals 
during  the  early  years  of  many  States,  a  regular  seven-year  period, 
based  upon  a  preceding  State  enumeration,  was  provided  in  Penn- 
sylvania, 1776-1857,  New  York  1777-1821,  Tennessee  1796-1834,  Georgia 
1798 — the  War;  a  four-year  period  in  Kentucky  1792-1850,  Ohio  1802- 
1851,  Louisiana  1812-45,  Missouri  1820-49,  Arkansas  1836— the  War;  a 
ten-year  period,  similarly  based,  in  New  York  since  1821,  Tenn- 
essee since  1834,  Massachusetts  since  1836,  Florida  since  1838,  Louisi- 
ana 1845-52,  and  1868-98,  Alabama  1850-75,  Mississippi  since  1868;  a 
ten-year  period,  similarly  based,  in  South  Carolina,  1808-1886,  New 
York  since  1821,  Tennessee  since  1834,  Massachusetts  since  1836,  Florida 
since  1838,  Louisiana  1845-52,  and  1868-98,  Alabama  1850-75,  Mississippi 
since  1868;  a  five-year  period  in  Indiana  1816-51,  Illinois  1818-48;  a 
six-year  period  in  Alabama  1819-50,  Indiana  since  1851 ;  a  period  of 
from  three  to  five  years  in  Mississippi  1817-32,  and  of  from  four  to 
eight  years,  1832 — the  War ;  a  period  of  from  five  to  ten  years  in  Maine 
since  1819;  an  eight-year  period  in  Texas  1845 — the  War;  a  period  of 
at  least  ten  years  in  Louisiana  1852 — the  War.  The  enumeration  was 
usually  subject  to  legislative  control,  but  in  Georgia  (Const.  1798,  i,  25 
— until  the  War),  and  recently  in  New  York  (Const.  1894,  iii,  4),  an 
independent  administrative  machinery  has  been  provided ;  and  in  South 


152  TERRITORIAL  BASIS  OF  GOVERNMENT  [544 

i.  The  permanent  district 
Entire  administrative  districts  (or  in  one  case  permanent 

Carolina  (Am.  1808;  Const.  1868,  ii,  5— until  1886)  the  Governor  was 
authorized  to  act  in  default  of  the  Legislature.  Originally  no  time 
limit  was  set  within  which  the  Legislature  must  make  the  apportion- 
ment; this  is  the  rule  to-day  in  Maine  and  Tennessee.  As  early  as 
1798,  however,  Georgia  required  action  at  the  first  session  after  re- 
ceipt of  the  returns ;  Indiana,  Massachusetts  and  Mississippi  still  retain 
this  provision.  Kentucky,  first,  in  1799,  named  the  year  within  which 
the  apportionment  must  be  made;  since  1885  this  has  been  the  rule  in 
Florida.  Louisiana,  first,  in  1845,  named  the  first  regular  session,  which 
since  1894  is  the  rule  in  New  York.  Until  the  War,  Louisiana  went 
so  far  as  to  prohibit  all  legislation,  after  an  enumeration,  until  the 
apportionment  had  been  made. 

The  seven-year  period,  without  any  reference  to  an  enumeration 
or  census,  the  successive  apportionments  being  dated  in  years,  was 
continued  in  Pennsylvania  from  1857  till  1873 ;  similarly  for  the  four- 
year  period  in  Missouri,  from  1849  till  1865,  and  for  the  ten-year 
period  in  Virginia  since  1830,  and  in  Kentucky  since  1890.  The  ar- 
rangement of  dates  in  Virginia,  except  from  1850  till  the  War,  clearly 
indicates  that  this  State  was  the  first  to  contemplate  making  use  of 
the  Federal  census  as  a  basis. 

The  Federal  Census  was  mentioned  nowhere  by  name,  however, 
until  1835,  when  Michigan  initiated  the  movement,  which  has  been 
so  widely  followed,  of  utilizing  not  only  this  but  an  intermediate  State 
apportionment.  In  addition  to  the  fourteen  Northwestern  States  in 
which  this  system  survives,  it  appeared  in  Michigan  1835-1908,  Illinois 
1848-70,  California  1849-79,  Missouri  1865-75,  Arkansas  1868-74.  As 
a  rule,  the  apportionment  in  these  States  is  to  be  made  at  the  first 
session  after  the  Census  or  Enumeration;  in  Illinois,  Iowa  (since 
1904),  Nebraska  (since  1875),  and  the  Dakotas,  at  the  first  regular 
session ;  in  Arkansas,  by  the  first  Legislature  elected  afterwards ;  in 
Missouri  and  Nevada,  no  time  limit  is  set.  In  Kansas,  apportionments 
are  to  be  made  at  dated  intervals  of  five  years,  on  the  basis  of  the 
Census  or  Enumeration  of  the  preceding  year,  which  must  be  taken 
by  the  State  itself  "at  least  cnce  in  ten  years"  (Kans.  Const.  1859, 
ii,  26;  x,  2).  Everywhere  an  interval  of  precisely  five  years  is  the 
ideal,  which,  because  of  the  prevalence  of  biennial  sessions,  can 
rarely  be  realized  in  practice. 

Simultaneously  with  this  action  on  the  part  of  Michigan,  North 
Carolina,  also  in  1835,  took  another  step  in  the  direction  of  complete 
dependence  upon  the  Federal  Census,  by  providing,  until  the  War, 


545]       REPRESENTATION  IN  THE  LOWER  HOUSE         ^3 

special  Legislative  districts),  uncombined  and  undivided, 
were  the  original  units  of  representation  in  eighteen  States, 

for  an  apportionment  at  dated  intervals  of  twenty  years,  to  be  based 
either  upon  a  State  Enumeration  or  upon  the  Federal  Census.  Ohio, 
since  1851,  has  applied  the  same  system  to  the  ten-year  period;  and 
express  authorization  of  either  basis,  with  reapportionment  at  the 
first  session  after  the  returns  (instead  of  at  dated  intervals)  is  the 
rule  in  North  Carolina  1868-73,  and  in  Alabama  and  Missouri,  since  1875  ; 
this  probably  is  also  what  South  Carolina,  since  1886,  attempted  to  ex- 
press in  detective  language.  In  New  Jersey,  since  1844,  a  slightly 
different  arrangement  is  in  force.  The  Legislature  must  reapportion 
at  its  first  session  after  every  Federal  Census,  but  apparently  may  also 
order  an  enumeration  of  its  own  at  any  time;  and,  more  clearly,  this 
is  the  situation  in  Maryland  since  1864  (the  apportionment  to  be  made 
"as  soon  as  practicable"  until  1867,  "immediately"  since  then)  and 
in  Arkansas,  since  1874  (at  the  first  regular  session).  Alternative  use 
of  State  or  Federal  Census,  it  will  be  recalled,  may  also  be  made  in 
Rhode  Island  and  New  Hampshire,  not  under  the  periodic  system. 

Iowa  had  a  peculiar  rule,  1846-1904,  under  which  reapportionments 
must  be  made  at  each  (biennial)  regular  session;  after  1857,  a  State 
Enumeration  at  intervals  of  ten  years  was  also  required.  -  This  State, 
in  1904,  came  over  to  the  Northwestern  system. 

There  remain  the  States  in  which  the  Federal  Census,  and  this  only, 
is  to  be  used.  Such  was  first  Maryland,  with  a  twenty-year  period, 
1837-51,  and  with  a  ten-year  period,  1851-64;  the  latter  has  been  the 
model,  since  the  War,  for  the  new  State  of  West  Virginia,  for  Georgia 
and  Texas  since  1868,  Virginia  1870-76,  Illinois  since  1870,  Pennsyl- 
vania since  1873,  North  Carolina  since  1873,  California  since  1879, 
Louisiana  since  1898,  Michigan  since  1908,  and  for  Oklahoma  and  New 
Mexico.  In  Maryland,  while  the  twenty-year  period  was  in  force,  the 
new  distribution  of  representatives  would  appear  to  occur  automatically 
"  from  and  after  the  promulgation  of  every  second  Census " ;  after 
1851,  however,  and  usually  in  the  other  States,  the  formal  apportion- 
ment is  made  at  the  first  session  of  the  Legislature  after  the  returns; 
in  Louisiana,  however,  at  the  first  regular  session;  in  West  Virginia, 
"  as  soon  as  possible  after  each  census " ;  in  Georgia,  1868-77,  "  after 
each  Census " ;  in  Illinois  and  Michigan,  at  dated  intervals.  In  Con- 
necticut, also,  it  will  be  recalled,  the  Federal  Census  alone  is  made 
use  of. 

For  references,  vide  under  the  several  systems  of  apportionment, 
infra,  but  note  for  North  Carolina,  *  Am.  1873,  ii,  5,  and  for  South 
Carolina  *  Am.  1886,  ii,  4,  5,  referring  solely  to  enumeration. 


154  TERRITORIAL  BASIS  OF  GOVERNMENT  [546 

admitted  prior  to  the  Mexican  War.  In  New  Jersey,  and 
in  a  half-dozen  Southern  States,1  this  sytem  still  survives, 
and  has  been  revived  in  Ohio  since  1903,  and  was  introduced 
into  Iowa  in  1904.  Although  this  is  only  a  small  minority 
of  the  total  number  of  States,  the  diversification  among  the 
others  is  so  great  that  this  is  actually  the  largest  group 
which  can  be  appropriately  classified  together.  The  unit 
in  all  the  surviving  instances  is  the  county.  Urban  districts, 
however,  at  least  of  a  certain  size,  continued  to  be  repre- 
sented in  addition,  in  accordance  with  English  and  Colonial 
tradition,  in  Pennsylvania  and  Maryland,  so  long  as  the 
system  of  permanent  districts  survived,  and,  before  the  War, 
in  Mississippi,  Alabama  and  Texas ;  while  in  South  Carolina, 
before  the  War,  the  peculiar  "  election  district ",  which 
later  acquired  administrative  functions,  was  utilized. 

These  special  South  Carolina  districts  were  strictly  "  per- 
manent ".  Administrative  districts  elsewhere  were  so  only 
in  the  sense  that  they  were  to  be  permanently  utilized  as 
units  of  representation.  In  connection  with  the  creation  of 
new  counties,  a  few  modifications  of  the  general  principle 
were  necessarily  admitted.2 

1  The  Carolinas,  Georgia,  Florida,  Alabama  and  Arkansas. 

2  Under  five  instruments,  no  county,  thereafter  erected,  was  to  be 
accorded    separate   representation   until   it    should   be   so   entitled   by 
numbers.     (Pa.   Const.   1790,  i,  4;   1838,  i,  4;  Ky.  Const.   1792,  i,  6; 
Mich.  Const.  1835,  iv,  4;  Fla.  Const.  1838,  ix,  4;  Mo.  Am.  1849,  iii.) 
Under  four,  more  specifically,  such  counties  were  to  be  considered, 
meanwhile,  for  purposes  of  representation,  as  parts  of  the  counties  from 
which  they  were  taken   (Tenn.  Const.  1796,  ix,  4;  Ohio  Const.  1802, 
vii,  3;  Ala.  Const.  1819,  vi,  16;  Tex.  Const.  1845,  vii,  34). 

In  other  States,  it  will  be  recalled,  the  purpose  of  these  provisions 
— a  safeguard  against  the  creation  of  undersized  units  of  represen- 
tation— was  attained  by  prohibiting  the  creation  of  such  counties,  even 
for  administrative  purposes.  Cf.  ch.  iii,  pp.  52,  65,  66,  supra. 

New  York  (Am.  1801,  iv;  Const.  1821,  i,  27)  and  Arkansas  (Const. 
1836,  iv,  34;  1874,  viii,  i)  insure  separate  representation  only  to  coun- 
ties already  in  existence  when  the  instruments  were  drafted. 


547]       REPRESENTATION  IN  THE  LOWER  HOUSE          i^ 

The  original  Pennsylvania  rule  for  the  distribution  of 
members  among  the  cities  and  counties  was  merely  that  the 
Legislature  should  "  appoint  a  representation  to  each  in 
proportion  to  the  number  of  taxables  ".*  In  1790,  a  limi- 
tation upon  the  total  number  was  set,  and  this  was  the 
simple  rule  usually  provided  in  the  North;  so,  to-day,  in 
New  Jersey  and  Alabama.  In  New  York,  however,  between 
1777  and  1 80 1,  generally  in  the  South,  and  in  the  two 
recent  Western  instances,  more  or  less  complicated  mathe- 
matical rules  appear,  in  some  cases — so  in  the  Carolinas  and 
Arkansas  to-day — designed  to  further  proportionate  equal- 
ity of  representation,  so  far  as  that  is  possible  under  this 
plan;  in  other  cases — in  Georgia,  Florida,  Iowa  and  Ohio, 
to-day — clearly  drafted  by  rural  representatives  in  their 
own  interest.2 


The  question  of  whether,  if  counties  large  enough  to  be  entitled  to 
separate  representation  are  erected,  they  are  to  be  accorded  this  privi- 
lege at  once,  without  waiting  for  the  regular  apportionment,  is  touched 
upon  only  in  Alabama  (Const.  1867,  viii,  2 — until  1875),  in  South 
Carolina  (Const.  1895,  iii,  3),  and  in  Florida  (Const.  1885;  vii,  4; 
*  Am.  1900).  Alabama  permitted  a  reapportionment  between  the 
counties ;  the  clause  refers,  however,  in  terms  only  to  the  first  ap- 
portionment period.  South  Carolina  appears  to  require  it  in  all 
cases.  Florida  gives  the  new  county  a  member  at  once;  since  1900, 
this  is  "  in  excess  of  the  limit  prescribed  in  section  2  of  this  article  " ; 
i.  e.,  the  representation  of  the  old  county  is  not  reduced. 

1  Pa.  Const.  1776,  7,  17  (until  1790). 

2  Limitation  of  total  number,  and  nothing  more,  except  the  require- 
ment, more  or  less  clearly  expressed,  that  each  county  was  to  have 
at  least  one  member,  appeared  in : 

Pennsylvania,   1790-1857   (60  to  100). 

Kentucky,  1792-99  (40  to  100). 

Tennessee,  1796-1834  (22  to  26,  until  the  number  of  taxables  should 
exceed  40,000;  then  not  more  than  40). 

New  York,  1801-46  (100,  and  increasing  at  each  reapportionment, 
at  the  rate  of  2  per  annum,  until  150  should  be  reached;  in  1821,  how- 
ever, a  flat  total  of  128  was  fixed). 


1 56  TERRITORIAL  BASIS  OF  GOVERNMENT  [548 

2.  Unions  of  administrative  districts 
Even  where  the  more  populous  districts  were  not  deliber- 

Ohio,  1802-51  (24  to  36,  until  22,000  white  males  over  21 ;  then  36 
to  72). 

Indiana,  1816-51  (25  to  36,  until  the  same  condition  was  fulfilled; 
then  36  to  100). 

Missouri,  1820-49  (not  to  exceed  100). 

Michigan,  1835-50   (48  to  100). 

Florida,  1838— the  War  (not  to  exceed  60). 

New  Jersey,  since  1844  (not  to  exceed  60). 

Texas,  1845— the  War  (45  to  90). 

Alabama,  since  1875  (originally,  not  to  exceed  100;  since  1901,  not  to 
exceed  105,  plus  one  additional  for  each  new  county  created). 

In  Pennsylvania,  however,  Philadelphia  was  treated  as  a  county, 
and  other  cities,  towns  and  boroughs,  at  least  until  1838,  might  be 
accorded  separate  representation.  In  Texas  the  apportionment  was  to 
be  among  the  several  counties,  cities  or  towns. 

The  earliest  detailed  rule  appeared  in  New  York,  in  1777.  Under 
this,  the  representation  of  each  county  was  to  be  increased  or  dimin- 
ished by  i  for  every  gain  or  loss  of  1/70  of  its  electors,  as  established 
by  the  first  Census,  until  a  maximum  of  300  should  be  reached,  which 
was  then  merely  to  be  apportioned  in  accordance  with  the  propor- 
tionate principle.  The  rule  was  dropped  in  1801,  because  absolutely 
unworkable  under  a  system  of  changing  county  lines. 

Georgia,  in  1798,  adopted  the  original  Massachusetts  plan,  modified 
by  being  based  upon  a  periodical  enumeration,  and  in  other  important 
particulars.  Counties  containing  under  3,000  of  the  enumerated  popu- 
lation returned  i ;  under  7,000,  2 ;  under  12,000,  3 ;  all  larger,  4.  This 
discrimination  against  the  larger  counties  was  accentuated  from  1843 
to  the  War,  by  the  adoption  of  the  simple  rule  that  the  thirty-seven 
largest  counties  should  have  2  members  each,  the  remainder,  i ;  the 
total  was  also,  curiously,  fixed  at  130,  although,  under  the  Constitu- 
tion as  it  then  stood,  new  counties  might  be  created.  In  1877  the  crea- 
tion of  new  counties  was  forbidden,  and  thus  a  return  to  the  rule  of 
1843,  slightly  modified,  recommended  itself.  The  six  largest  counties 
now  return  3  members  each,  the  twenty-six  next  largest,  2,  the  re- 
maining counties,  i  each,  to  a  total,  first  fixed  at  175 ;  but  in  1904  and 
again  in  1908  this  was  raised  to  a  present  maximum  of  184. 

Georgia's  neighbor,  South  Carolina,  was  the  next  State,  in  1808,  to 
adopt  the  following  interesting  rule.  A  double  "  ratio ",  as  it  came 
later  to  be  termed,  was  adopted:  first,  1/62  of  the  white  population 
of  the  State;  second,  1/62  of  the  total  average  taxes  raised  during 


549]       REPRESENTATION  IN  THE  LOWER  HOUSE 

ately  under-represented,  the  natural  effect  of  limiting  the 

the  preceding  ten  years.  Each  election  district  was  entitled  to  i  mem- 
ber for  every  full  ratio  of  either  sort,  and  for  sums  of  remaining 
"  fractions  "  of  both,  which,  when  added  together,  would  form  a  unit. 
Each  district  was  to  have  at  least  I  member,  in  any  case;  and  addi- 
tional members  were  to  be  assigned  to  districts  containing  the  largest 
unrepresented  fractions  of  either  sort,  until  a  total  of  124  should  be 
reached.  This  very  complete  rule  apparently  worked  so  well  before 
the  War,  that  it  has  been  continued  since,  with  only  such  modifications 
as  are  involved  in  the  change  from  a  double  to  a  single  standard,  and 
from  the  election  district  to  the  county.  The  ratio,  that  is  to  say,  is 
now  1/124  of  the  population,  and  the  residue  of  124  members,  after 
each  county  and  each  full  ratio  has  been  disposed  of,  is  made  up  by 
representing  the  largest  "  surplus  fractions ". 

Kentucky,  as  will  appear  later,  had  devised,  in  1799,  a  plan  which, 
in  its  main  outlines,  resembled  that  common  later  in  the  North,  but 
which  included  a  peculiar  treatment  of  "  residuums "  ("fractions," 
"remainders").  In  1817  this  was  elaborated  by  Mississippi.  The 
total  number  was  limited  (24  to  36,  until  there  should  be  80,000  free 
white  inhabitants;  thereafter,  36  to  100;  in  1832  the  first  half  of  the 
provision  was  dropped).  The  "ratio",  as  usually  in  the  North,  might 
be  any  number  that  would  yield  this  result.  In  the  application  of  this 
ratio,  however,  the  following  rules  were  to  be  observed,  in  addition  to 
the  requirement  that  each  county  should  have  at  least  one  member: 
If  the  residuums  of  two  adjoining  counties  should  together  equal 
a  full  ratio,  then  the  county  containing  the  largest  residuum  should 
be  given  an  additional  member ;  a  city  or  town  having  a  full  ratio  must 
be  accorded  separate  representation;  the  rule  for  shifted  residuums 
held  also  as  between  this  urban  district  and  the  balance  of  the 
county  in  which  it  lay.  Alabama,  two  years  later,  adopted  this  same 
rule  (originally  44  to  60  members,  until  there  should  be  100,000  whites; 
thereafter,  60  to  100;  in  1850,  merely  not  to  exceed  100),  with  the  wise 
proviso,  however,  that  cities  or  towns  should  not  be  accorded  separate 
representation  unless  the  balance  of  the  county  should  also  be  left 
with  a  full  ratio.  This  rule  continued  in  both  States  until  the  War, 
and,  with  the  urban  provision  omitted,  was  revived  in  Alabama  until 
1875  (total  number  of  members  not  to  exceed  100),  when  the  shifted 
residuum  was  also  dropped,  and  the  Northern  plan,  in  all  its  simplicity, 
was  followed. 

A  more  lasting  modification  of  the  South  Carolina  plan  was  devised 
by  North  Carolina,  in  1835.  The  total  was  fixed  (at  120)  and  the 
system  of  representing  the  largest  surplus  fractions  was  adopted. 
The  ratio  was  to  be  determined,  however,  in  the  following  manner: 


158  TERRITORIAL  BASIS  OF  GOVERNMENT  [550 

total  number  of  members  was  to  produce  a  "  ratio  "  of  rep- 
first,  the  counties  containing  each  less  than  1/120  of  the  enumerated 
population  were  given  their  separate  single  members;  then  the  popu- 
lation of  the  rest  of  the  State  was  to  be  divided  by  the  remaining 
number  of  members.  The  purpose  of  this  modification  was  of  course 
to  make  sure  that  the  system  would  work,  since,  under  the  original 
plan,  it  is  theoretically  possible  for  the  required  total  to  be  reached 
before  even  all  the  full  ratios  are  represented.  No  change  has  been 
made  in  this  system. 

Arkansas  before  the  War,  and  since  1874,  differs  from  the  simple 
Northern  plan  only  in  having  provided,  prior  to  the  War,  that  the 
ratio  should  be  500  free  whites,  until  a  total  of  75  should  be  reached; 
since  the  War,  that  it  should  be  2,000  adult  males,  until  100  should  be 
reached.  The  total  was  originally  54  to  100,  and  not  above  75  until 
the  State  should  contain  500,000  inhabitants;  since  1874,  73  to  100. 

Maryland  has  had  much  difficulty  in  hitting  upon  a  satisfactory 
solution.  In  1837  it  modified  the  original  Georgia  plan,  as  follows: 
Counties  containing  under  15,000  of  the  enumerated  population  were 
to  return  3  members  each ;  under  25.000,  4 ;  under  35,000,  5 ;  all  larger, 
6;  and  Baltimore  to  return  as  many  as  the  largest;  specified  counties, 
however,  always  to  be  entitled  to  at  least  4,  or  to  at  least  5,  irrespective 
of  their  population.  This  flagrant  discrimination  against  Baltimore 
was  to  some  extent  remedied  in  1851,  when  a  total  of  65  to  80  was 
prescribed,  to  be  so  apportioned  that  each  county  should  return  at  least 
2,  and  Baltimore  always  four  more  than  the  largest.  Since  1864  still 
further  changes  have  been  made,  which  will  be  considered  later. 

Missouri,  also,  between  1849  and  1865,  had  an  elaborate  scheme 
aimed  against  the  larger  counties.  The  ratio  was  fixed  at  1/140  of 
the  enumerated  population,  and  counties  containing  3  full  ratios  were 
accorded  3  members  each.  Smaller  counties  were  over-represented — 
all  counties  returning  at  least  i  member,  and  counties  which  contained 
\y$  ratios  returning  2;  and  larger  counties  were  under-represented — 
an  increase  of  il/2  ratios  each  being  required  for  the  fourth  and  for 
the  fifth  members,  2  ratios  each  for  the  sixth  and  for  the  seventh,  3 
ratios  for  the  eighth,  2  for  the  ninth,  3  each  for  the  tenth,  the  eleventh 
and  the  twelfth,  so  that  counties  containing  24  ratios  returned  only  12 
members.  Still  larger  counties  were  to  be  represented  "  in  the  same 
proportion";  this  probably  meant  (cf.  Const.  1865,  iv)  that  they  were 
to  return  one  additional  member  for  every  3  ratios. 

Florida,  in  1868,  adopted  a  simple  plan,  differing  in  some  respects 
from  that  of  any  other  State.  Each  county  was  to  return  one  mem- 
ber "  at  large ",  and  one  "  additional "  for  every  1,000  registered 
votes;  but  no  county  to  return  more  than  4.  One  member  was  also 


551]       REPRESENTATION  IN  THE  LOWER  HOUSE 
resentation  so  large  that,  if  each  unit  were  to  have  at  least 

given  to  the  Seminole  Indians.  Since  1885  the  Indian  representative 
has  been  dropped,  the  county  maximum  has  been  reduced  to  3,  and  a 
maximum  total  of  68  members  prescribed,  with  no  fixed  ratio.  The 
retention  of  the  expression  "  at  large  "  indicates  that  the  spirit  of  the 
provision  secures,  to  each  county  having  as  much  as  a  full  ratio, 
either  2  or  3  members. 

Ohio,  in  1903,  amending  a  "  county  union "  plan  devised  in  1851 
(vide  p.  165,  infra)  now  makes  the  county  again  the  one  unit  of 
representation.  The  ratio  is  fixed  at  i/ioo  of  the  population,  and 
representation  is  based  on  full  ratios,  except  in  the  case  of  the  smaller 
counties,  where  the  Missouri  plan  is  adopted ;  every  county,  that  is  to 
say,  is  to  have  at  least  i  member,  and  counties  containing  1^4'  ratios, 
2  each.  For  unrepresented  fraction  of  a  ratio,  an  elaboration  of  the 
New  England  part-time  representation  appears:  The  biennial  ses- 
sions of  the  decennial  period  are  numbered,  from  one  to  five,  and  addi- 
tional members  are  accorded  for  as  many  sessions  as  the  fraction 
equals  when  multiplied  by  five ;  if  the  product  equals  i,  the  member 
serves  for  the  fifth  session;  if  2,  for  the  fourth  and  third;  if  3,  for 
the  first  three  sessions ;  and  if  4,  for  the  first  four. 

Finally,  Iowa,  since  1904,  establishes  the  ratio  by  dividing  the  popu- 
lation by  the  number  of  counties ;  each  county  then  gets  i  member, 
and  each  of  the  nine  largest  i  additional,  in  case  its  population 
exceeds  the  ratio  by  three-fifths.  The  total  number  also  may  not 
exceed  108.  Under  this  arrangement,  Polk  county,  casting  over  21,000 
votes  for  President  in  1908,  is  balanced  by  Dickinson  and  Osceola, 
casting  together  less  than  3,500. 

It   will    thus    be    observed    that   in    five    States  —  Georgia,    Florida, 
Maryland,  Missouri  and  Iowa — as  well  as  in  Ohio,  in  slighter  degree, 
the    more    populous    counties    have    been    deliberately    discriminated 
against  under  this  plan. 
References : 

Pa.  Const.  1790,  i,  3,  4;  1838,  i,  4  (until  1857). 

N.  Y.  Const.  1777,  5,  16;  Am.  1801,  i,  ii,  iv;  1821,  i,  2,  7  (until  1846). 

Ky.  Const.  1792,  i,  6  (until  1799)- 

Tenn.   Const.   1796,  i,  2   (until  1834). 

Ga.  Const.  1798,  i,  7,  25 ;  Am.  1843,  i,  7  (until  the  War)  ;  Const. 
1877,  iii,  3 ;  *  1904,  1908. 

Ohio  Const.  1802,  i,  2  (until  1851)  ;  Am.  1903,  xi,  i,  2,  3. 

S.  C.  Am.  1808;  Const.  1868,  ii,  4.  6;  1895,  iii,  3,  4. 

Ind.  Const.  1816,  iii,  2  (until  1851). 

Miss.  Const.  1817,  iii,  8,  9;  1832,  iii,  8,  9  (until  the  War). 


!6o  TERRITORIAL  BASIS  OF  GOVERNMENT  [552 

one  representative,  some  very  small  fractions  might  thus 
secure  full  representation.  This  was  felt  in  several  States 
to  be  unfair;  and  since  the  limitation  of  total  number  was 
necessary,  for  reasons  both  of  expense  and  of  efficient  opera- 
tion, the  plan  was  devised  of  uniting  administrative  dis- 
tricts, which  contained  less  than  the  "  ratio  ",  into  special 
representative  districts.  New  Hampshire,  as  early  as  1784, 
had  foreshadowed  this  method  of  treatment  in  its  "classed" 
groups  of  towns,  but  Kentucky,  in  1799,  was  the  first  to 
adopt  it  in  connection  with  the  periodic  system.  The  plan 
has  been  introduced  into  twelve  States  in  all,  and  survives 
in  four:  Maine,  Tennessee,  West  Virginia  and  Texas. 
Since  in  some  States  the  normal  unit  of  representation  was 
the  town,  in  others  the  county,  in  still  others  both  the  county 
and  the  large  urban  district,  the  following  types  of  repre- 
sentative districts  resulted: 

In  Kentucky  and  Illinois,  and  in  Texas  until  1876:  coun- 
ties; urban  districts;  counties  from  which  these  urban  dis- 
tricts were  set  off;  groups  of  counties. 

In  Maine:  towns;  "plantations";  groups  of  towns  or 
plantations. 

In  Virginia :  counties ;  cities ;  until  the  War,  towns ;  until 
1850,  boroughs;  counties  from  which  these  urban  districts 
were  set  off ;  groups  of  any  of  these  normal  units. 

Ala.  Const.  1819,  iii,  8,  9 ;  Am.  1850 ;  Const.  1867,  viii,  i ;  1875,  ix,  2, 
3;  1901,  198,  199- 

Mo.  Const.  1820,  iii,  2,  4;  Am.  1849,  iii  (until  1865). 

Md.  Am.  1837,  10 ;  Const.  1851,  iii,  3;  1864,  iii,  2,  4  (until  1867). 

N.  C.  Am.  1835,  i,  i ;  Const.  1868,  ii,  6,  7 ;  1876,  ii,  5,  6. 

Mich.  Const.  1835,  iv,  2,  3,  4  (until  1850). 

Ark.  Const.  1836,  iv,  34  (until  the  War)  ;  1874,  viii,  i. 

Fla.  Const.  1838,  iv,  18;  ix,  i;  1868,  xiv;  xvii,  7;  1885,  vii.  3. 

N.  J.  Const.  1844,  iv,  3. 

Tex.  Const.  1845,  iii,  29  (until  the  War). 

Iowa  Am.   1904,  iii,  35. 


553]       REPRESENTATION  IN  THE  LOWER  HOUSE         j6i 

In  Massachusetts:  cities;  towns;  groups  of  towns  or 
(until  1840)  "districts". 

In  Tennessee,  California,  Ohio,  West  Virginia,  Miss- 
issippi, and  in  Texas  since  1876:  counties;  groups  of  coun- 
ties. 

This,  however,  was  not  all.  One  of  the  most  character- 
istic products  of  American  political  ingenuity  is  the  "  float- 
ing "  or  "  flotorial  "  district :  a  grouping  of  counties,  at  least 
one  of  which  is  already  separately  represented,  for  the  pur- 
pose of  combining  fractions  of  the  representative  "  ratio  ", 
and  thus  securing,  for  the  group  as  a  whole,  an  additional 
representative.  The  origin  of  the  term  is  either  that  these 
new  districts  may  be  pictured  as  "  floating  "  upon  a  sub- 
stratum of  already  represented  counties ;  or  that,  by  a  further 
refinement,  the  additional  representative  may  be  required 
to  reside  in  each  of  the  counties  in  turn,  and  so  may  be 
aptly  termed  a  "  floater  " ;  or  the  term  may  have  been  first 
coined  in  allusion  to  the  temporary  character  of  such  dis- 
tricts. The  discovery  that,  under  existing  Constitutional 
provisions  this  device  was  permissible  seems  to  have  been 
made  first  either  in  Kentucky  or  in  Illinois,  since  when  its 
vogue  has  been  greater  in  the  South  than  in  the  North.  It 
was  forbidden,  that  is  to  say,  in  Illinois  in  1848,  in  Iowa 
in  1857,  and  has  never  been  introduced  into  Massachusetts, 
Maine,  Ohio  or  West  Virginia. 

As  regards  the  manner  in  .which  these  various  unions 
were  to  be  formed,  the  great  distinction  is  between  the  two 
New  England  States  and  the 'rest.  In  Maine  and  Massa- 
chusetts, as  in  New  Hampshire,  a  town  had  the  option  be- 
tween being  grouped  (in  Massachusetts,  of  grouping  itself) 
with  any  town  or  towns,  or  of  taking  part-time  representa- 
tion. Elsewhere,  the  Legislature — or,  in  Ohio,  the  Gov- 
ernor, Auditor  and  Secretary  of  State — determined  the 
unions.  In  some  cases,  the  absence  of  any  requirement  for 


162  TERRITORIAL  BASIS  OF  GOVERNMENT  [554 

separate  county  (or  town)  representation  left  the  Legisla- 
ture with  a  large  measure  of  freedom  in  forming  unions; 
but  in  other  cases  more  or  less  elaborate  rules  govern  both 
the  formation  of  unions,  and  the  apportionment  of  members 
to  each  unit  thus  resulting;  and  while  occasionally — so  in 
Texas,  to-day — these  rules  have  been  designed  to  insure 
proportionate  equality  of  representation,  more  often — so  in 
Maine,  Tennessee  and  West  Virginia,  to-day — they  operate 
to  the  disadvantage  of  the  more  populous  towns  or  counties. 
Finally,  it  should  be  observed  in  connection  with  county 
unions,  that  Maine  having  evolved  the  notion  of  using  the 
county  as  a  superior  unit  of  representation,  its  allotted  mem- 
bers then  to  be  distributed  among  the  towns,  etc.,  Virginia, 
between  1830  and  1850  utilized  four  specified  groups  of 
counties  in  a  similar  fashion.  These  "  distributing  dis- 
tricts," as  they  may  be  termed,  were  permanent  except  as 
against  a  two-thirds  majority  of  the  Legislature,  by  whom 
they  might  be  disregarded.1 

1  Virtually  nothing  more  than  limitation  of  total  number  of  members 
appeared  in: 

Illinois,  1818-48  (27  to  36,  until  the  State  should  contain  100,000 
inhabitants). 

Virginia,  1830-50  (134  members  ir  all,  divided  among  four  great  dis- 
tricts: 31  west  of  the  Alleghenies;  25  between  these  and  the  Blue 
Ridge;  42  east  of  this  and  above  tide-water;  36  on  tide-water.  If, 
however,  by  a  two-thirds  majority  the  great  districts  should  be  disre- 
garded, a  maximum  of  150  was  the  only  restriction).  1850 — the  War 
(152).  1870-76  (no  limit).  1876-1902  (90  to  100). 

Iowa,  1846-57  (26  to  39,  until  175,000  whites;  thereafter  39  to  72). 

California,  1849-62  (24  to  36,  until  100,000  inhabitants;  thereafter 
30  to  80). 

Texas,  1868-76   (90). 

Mississippi,  1868-90  (100  to  120). 

In  Illinois,  the  rule  was  extraordinarily  free,  reading  merely  that 
the  total  number  should,  at  the  stated  times,  "be  apportioned  among 
the  several  counties,  or  districts  to  be  established  by  law,  according  to 
the  number  of  white  inhabitants".  In  Virginia  and  Mississippi,  it 


555]       REPRESENTATION  IN  THE  LOWER  HOUSE 

3.  Obligatory  subdivisions  of  administrative  districts,  with- 
out unions 
In  none  of  the  instances  thus  far  treated  is  there  any 

was  clear  from  other  parts  of  the  text  that  only  the  regular  admin- 
istrative districts — in  Mississippi  only  the  counties — might  be  joined  to 
form  these  "districts".  Iowa  and  California  expressly  provided  that 
they  must  be  formed  of  contiguous,  complete  counties.  In  Texas,  no 
warrant  for  unions  appears  but  they  appear  in  the  accompanying  pro- 
visional apportionment.  The  possible  introduction  of  flotorial  dis- 
tricts under  these  broad  provisions  is  shown  by  the  fact  that  such 
districts  were  later  expressly  forbidden  in  Illinois  and  Iowa,  and 
appear  in  a  provisional  apportionment  in  the  Virginia  instrument  of 
1850.  Here,  also,  two  sets  of  part-time  representatives,  ingeniously 
alternating,  so  as  to  keep  the  total  number  of  members  the  same, 
indicate  the  latent  possibilities  of  these  provisions. 

An  exception  to  the  general  rule  of  periodic  rigidity  appears  in  a 
Virginia  requirement  of  1830  (Const,  iii,  4)  that  when  a  new  county 
is  created,  or  a  city,  town  or  borough  has  so  increased  as  to  be  en- 
titled in  the  opinion  of  the  Legislature  to  separate  representation,  this 
shall  be  accorded,  even  if  it  is  necessary  to  reapportion  the  entire 
great  district.  Compare,  on  a  similar  point,  the  Alabama,  South  Caro- 
lina and  Florida  provisions,  supra,  and  that  of  Tennessee,  infra. 

Turning  now  to  the  more  detailed  provisions,  we  find,  first,  the 
shifted  residuum  rule  of  Kentucky.  This  differed  from  the  Mississippi 
modification  of  the  same,  already  described,  in  these  respects:  The 
total  number  of  members  was  to  be  58  to  100.  The  provision  for  an 
additional  member,  on  a  shifted  residuum,  making  up  a  full  ratio, 
applied  only  as  between  adjoining  counties — not  as  between  an  urban 
district,  and  the  balance  of  the  county  in  which  it  lay.  And  not 
every  county  was  entitled  to  one  member.  Instead  of  this,  the  least 
populous  counties  could  secure  separate  representation  only  through 
the  shift  of  residuum;  if  this  did  not  work,  then  the  Legislature  was 
authorized  to  join  two  or  more  counties  together.  "  Flotorials,"  ap- 
parently, might  occur  under  this  system,  to  a  limited  extent.  This 
lasted  until  1850. 

Maine,  in  1819,  evolved  the  following  cumbersome  rule.  The  total 
number  of  members  was  to  be  provisionally  fixed  at  some  figure, 
between  100  and  150,  and  apportioned  among  the  counties;  under  the 
original  plan,  the  representation  of  each  county  was  then  to  increase, 
in  proportion  to  its  increase  in  population,  until  a  total  of  200  should 
be  reached,  when  a  popular  election  was  to  decide  what  to  do  about  it. 
Within  each  county,  1,500  is  the  minimum  number  of  population  below 


t64  TERRITORIAL  BASIS  OF  GOVERNMENT          [556 

reference  to  a  possible  division  of  the  more  populous  coun- 

which  towns  are  not  accorded  full  separate  representation — provided 
this  number  will  work;  if  it  doesn't  work,  then  a  different  figure  is 
to  be  adopted.  Towns  and  plantations  containing  less  than  the 
figure  are  to  be  "  classed "  into  districts,  containing  that  number ; 
except  that  when  any  town  or  plantation  determines  against  classifica- 
tion, the  Legislature  is  authorized  to  give  it  a  proportionate  part-time 
representation.  Larger  towns  are  entitled  to  additional  members,  on 
an  arbitrary  rule,  by  which  the  "  increasing  number "  is  itself  pro- 
gressively increased,  so  as  to  discriminate  against  the  larger  towns; 
that  is  to  say,  3,750  inhabitants  are  required  for  2  members,  6,750  for 
3,  10,500  for  4,  15,000  for  5,  20,250  for  6,  26,250  for  7;  and  no  town 
more  than  7.  How  this  fixed  scale  is  to  be  reconciled  with  a  change 
in  the  determining  1,500  is  not  stated.*  The  only  change  made  in  this 
rule  was  in  1841  to  prescribe  a  flat  total  of  151  members. 

Massachusetts,  in  1836,  saw  no  virtue  in  this  use  of  counties  for 
distributing  purposes.  To  reduce  the  size  of  its  chamber,  it  doubled 
its  original  minimal  and  mean  increasing  figures,  establishing  them  at 
300  and  450  ratable  polls,  respectively.  For  smaller  towns,  it  intro- 
duced the  part-time  idea,  with  a  formula  by  which  the  number  of 
years  was  to  be  determined,  in  accurate  proportion,  and  even  extended 
this  same  idea  to  the  unrepresented  fractions  of  larger  towns.  Any 
two  or  more  towns  or  "  districts ",  however  large  or  small,  might 
unite  themselves  into  a  "  Representative  district ",  to  be  represented 
under  the  same  rules  as  the  towns.  Four  years  later,  the  minimal  and 
mean  increasing  figures  were  changed  to  1,200  and  2,400  inhabitants, 
respectively,  to  be  increased  by  i/io  for  every  increase  of  70,000  in- 
habitants in  the  State,  over  an  assumed  basis  of  700,000.  No  part- 
time  representatives  were  accorded  to  the  larger  towns,  and  for  the 
smaller  the  formula  was  so  changed  as  to  give  them  representation 
for  only  three-fourths  of  the  time  to  which  they  were  proportionately 
entitled;  on  the  other  hand  they  might  also  elect  a  representative  for 
the  years  in  which  property  was  appraised.  This  whole  system  was 
mercifully  abolished  in  1857. 

Tennessee,  meanwhile,  in  1834,  adopted  a  free  plan,  which  provides, 
in  addition  to  the  limitation  upon  the  total  number  (maximum  of  75, 
until  1,500,000  inhabitants;  thereafter  maximum  of  99)  merely  that 
every  county  having  ^  ratio  shall  be  entitled  to  one  member.  A 
technical  improvement  upon  most  other  instruments  also  appears  in 
the  explicit  declaration  that  the  creation  of  new  counties  shall  not 
affect  existing  representative  lines  until  the  regular  reapportionment 
(Const.  1834,  x,  5;  1870,  x,  5).  The  "Ordinance"  of  the  1834  instru- 


REPRESENTATION  IN  THE  LOWER  HOUSE 
ties  or  cities,   for  representative  purposes.     Except  under 

rnent  shows  that  under  this  system,   which  has  never  been  changed, 
flotorials  are  permissible. 

In  Illinois,  in  1848,  a  sliding  total  was  provided  (75  until  the  State 
should  contain  a  million  inhabitants ;  then  5  might  be  added,  and,  for 
every  half-million  increase,  5  more,  until  a  total  of  100  should  be 
reached);  flotorials  were  forbidden;  separate  representation  of  cities 
and  towns  authorized  (not  required)  and  additional  regulations  made, 
which,  although  not  clearly  expressed,  would  seem,  in  the  light  of  the 
accompanying  provisional  apportionment,  to  bear  the  following  mean- 
ing: All  counties  and  districts  to  be  represented  only  on  full  ratios 
credited  to  them;  counties  containing  from  i  to  IJ4  ratios  to  be 
separately  represented ;  the  excess  over  the  ratio  here  to  be  'credited 
to  the  nearest  county  or  counties  containing  less  than  I  ratio  and  the 
largest  white  population;  these  to  be  separately  represented  if  they 
now  are  credited  with  a  full  ratio ;  otherwise  to  be  combined  with  one 
another,  or  with  counties  containing  6ver  1^4  ratios;  counties  con- 
taining over  iJ4  ratios  to  be  similarly  combined  with  one  another,  if 
necessary,  to  prevent  waste;  but  no  county  or  district  to  return  more 
than  3  members.  A  discrimination  thus  still  existed  against  the 
more  populous  counties,  though  not  so  flagrant  as  if  every  county  was 
to  have  at  least  one  member.  This  lasted  until  1870. 

Three  years  later  came  Ohio,  with  another  elaborate  rule,  the  main 
features  of  which  have  already  been  described  as  still  in  force,  and 
need  not  be  repeated.  The  feature  through  the  abolition  of  which, 
in  1903,  the  State  reverted  to  the  system  of  representing  only  counties, 
was  this:  Counties  containing  ^  the  ratio  were  to  be  entitled  to  i 
member;  those  which  at  that  time  were  smaller  were  formed  into 
seven  specified  groups,  each  returning  i  member.  If  these  union 
could  subsequently  be  torn  apart,  so  that  each  fragment  could  have  l/2 
ratio,  this  was  to  be  done.  Similarly  if  an  independent  county  should 
be  found  to  have  less  than  ^  ratio,  it  should  be  joined  to  the  adjacent 
county  having  the  smallest  population,  and  this  district  represented 
under  the  same  rule  as  for  counties.  (Vide  p.  159,  supra.} 

Iowa,  in  1857,  set  a  maximum  of  100  members,  forbade  flotorials, 
and  discriminated  against  the  more  populous  counties  in  the  following 
flagrant  manner:  Counties  containing  from  l/2  to  1^2  ratios  return  i 
member;  all  larger,  2;  all  smaller,  to  be  formed  into  districts,  com- 
prising not  more  than  four  counties,  returning  i  member  in  any  case, 
and  (probably)  i  more,  under  the  same  conditions  as  for  counties. 
We  have  seen  how,  in  1904,  this  was  replaced  by  a  flat  requirement  of 
i  or  2  for  all  counties. 


1 66  TERRITORIAL  BASIS  OF  GOVERNMENT  [558 

the  original  broad  Illinois  provision,  such  divisions  would 

West  Virginia  entered  with  a  still  more  elaborate  plan.  The  total 
number  of  members  was  fixed  at  47,  subject  to  be  increased  by  the 
inclusion  of  additional  territory  within  the  State.  Divide  the  enumer- 
ated population  by  this  figure,  exclude  fractions,  and  you  obtain  the 
ratio.  Counties  containing  less  than  l/2  ratio  are  to  be  joined  to  one 
or  more  contiguous  counties,  to  form  "  delegate  districts ".  Every 
delegate  district  and  remaining  county  is  to  have  a  member  for  every 
full  ratio,  but  i  in  any  case.  The  additional  members  required  to 
make  up  the  fixed  total  are  then  assigned  to  the  delegate  districts  or 
counties  having  the  largest  fractions,  on  the  Carolina  plan.  Finally, 
the  members  chosen  by  the  delegate  districts  must  be  residents  within 
each  of  the  included  counties  for  a  proportion  of  time,  equal,  as  near 
as  may  be,  to  the  proportionate  population  of  the  counties.  This  last 
crowning  touch  was  removed  in  1872,  since  when,  also,  the  total  number 
has  been  fixed  at  65,  subject  to  increase  as  before,  and  the  determining 
fraction  raised  from  l/2  to  %i- 

Texas,  the  latest  exponent  of  this  system,  provided,  in  1876,  a 
simpler  and  a  fairer  plan.  The  total  is  set  at  from  93  to  150  members, 
with  the  additional  proviso  that  the  ratio,  to  be  obtained  by  dividing 
the  population  by  this  figure,  must  be  at  least  15,000;  with  the  popu- 
lation as  large  as  it  now  is,  this  proviso  has  no  longer  any  significance. 
Counties  are  to  be  separately  represented  on  full  ratios;  districts  are 
to  consist  of  contiguous  counties;  and  flotorials  are  expressly  au- 
thorized. 

In  six  States,  then — Maine,  Tennessee,  Illinois,  Ohio,  Iowa  and  West 
Virginia — the  smaller  towns  and  counties  came  to  be  favored  even 
under  this  plan.  In  Maine,  Tennessee  and  West  Virginia,  the  dis- 
crimination, never  very  great,  survives;  in  Ohio  and  Iowa  it  has  been 
accentuated  by  a  return  to  the  system  of  granting  a  member  to  every 
county. 

References : 

Ky.  Const.  1799,  ">  5,  *6;  (until  1850). 

111.  Const.  1818,  ii,  5,  31,  40;  1848,  iii,  6,  8-10  (until  1870). 

Me.  Const.  1819,  ch.  iv,  part  i,  2,  3;  Am.  1841,  iv. 

Va.  Const.  1830,  iii,  2,  4,  5;  1850  iv,  2,  5,  6;  1870,  v,  2,  4;  Am.  1876, 
v,  2,  4  (until  1902). 

Tenn.  Const.  1834,  ii,  5 ;  Ordinance,  v,  Const.  1870,  ii,  5- 

Mass.  Am.  1836,  xii;   1840,  xiii   (until  1857). 

iowa  Const.  1846,  iii,  "Leg.  Dept.",  31,  32;  Const.  1857  "Leg.  Dept.", 
35-37  (until  1904). 

Cal.  Const.  1849,  iv,  29,  30   (until  1862). 


559]       REPRESENTATION  IN  THE  LOWER  HOUSE 

not  appear  to  be  possible;  although  it  must  fairly  be  ad- 
mitted that  the  language  employed  is  not  always  so  clear  but 
that  the  Courts  might  uphold  a  contrary  construction.  In 
Louisiana,  from  the  beginning,  however,  these  divisions 
have  been  expressly  permitted,  and  actually  effected,  and 
since  1845  tnev  nave  'm  many  cases  been  made  obligatory. 
This  development  has  occurred  in  six  States,  in  five  of  which 
it  survives,  in  connection  with  the  original  provision  that 
each  county  must  be  accorded  separate  representation;  and 
although  in  Massachusetts  the  existing  "Representative  dis- 
tricts "  may  be  considered  indifferently  as  unions  of  towns 
within  the  county,  or  as  divisions  of  counties  to  be  made 
without  dividing  towns,  the  details  of  the  governing  pro- 
vision are  such  as  to  assimilate  this  system  also,  to  that  of 
its  important  neighbors  New  York  and  Pennsylvania. 

As  always,  there  has  been  much  diversity.  The  saving 
clause  in  the  original  Louisiana  instrument,  prescribing,  for 
a  representative,  residence  "  in  the  county  for  which  he  may 
be  chosen  or  in  the  district  for  which  he  is  elected  in  case 
the  said  counties  may  be  divided  into  separate  districts  of 
election  " ,  reflects  merely  the  overlarge  size  of  these  early 
"  counties  ",  which,  as  we  have  seen,  were  later  superseded, 
in  almost  every  respect,  by  "  parishes  ".  Because  of  its  late 
utilization  for  county  purposes,  however,  the  parish  lacked 
that  consecration,  as  at  least  one  unit  of  representation, 
which  almost  everywhere  else  the  county  enjoyed.  Hence 
it  is  not  merely  a  coincidence  that  although,  in  1845,  Louisi- 
ana provided  for  proportionate  representation  of  parishes, 
with  the  usual  qualifications  that  each  parish  should  return 

Ohio  Const.  1851,  xi,  1-5,  n;  Sched.  19  (until  1903). 
W.  Va.  Const.  1862,  iv,  2,  7-9,  14-16;  1872,  vi,  6,  7,  10,  n. 
Miss.  Const.  1868,  iv,  2,  33,  34  (until  1890). 
Tex.  Const.  1868,  Hi,  5,  7,  u,  39;  1876,  iii,  2,  26,  28. 


168  TERRITORIAL  BASIS  OF  GOVERNMENT          [560 

at  least  one  member,  it  should  have  been  the  first  of  the 
States  to  break  a  populous  administrative  district  up.  Not 
merely,  since  1845,  nave  representatives  been  required  to 
be  distributed  among  the  several  parishes  and  election  dis- 
tricts? but,  until  1852,  the  left  bank  of  Orleans  parish  was 
divided  into  nine  such  districts,  with  boundaries  defined  in 
terms  of  streets  and  "  municipalities  ".  In  1852  this  was 
changed  to  an  obligation  imposed  upon  the  Legislature  to 
divide  the  somewhat  greater  territory  included  in  the  same 
description,  into  not  more  than  ten  districts;  between  1868 
and  1898  the  Legislature  would  appear  to  have  been  free 
to  establish  such  districts  or  not,  and  in  any  parish  that  it 
chose.  In  practice,  however,  it  consistently  maintained 
them  in  New  Orleans,  and  nowhere  else,  until  finally,  in 
1898,  the  New  Orleans  "  ward  "  was  completely  assimilated 
to  the  parish  elsewhere,  as  the  original  unit  of  representa- 
tion— both  parish  and  ward  being  still  subject,  it  would  ap- 
pear, to  subdivision  by  the  Legislature  at  its  own  discretion. 
Among  the  parishes  and  Representative  districts,  as  they 
happen  to  exist,  members  are  then  distributed  by  a  simple 
rule  which  makes  no  direct  discrimination  between  urban 
and  rural  districts.2 

The  State  which  has  most  nearly  followed  Louisiana  is 
Maryland,  which,  in  1864,  required  its  Legislature  to  divide 
Baltimore  into  three  "  Legislative  districts ",  "  of  equal 
population  and  contiguous  territory,  as  near  as  may  be  ", 

^'Parishes  and  Representative  Districts,"   1868-79,   and  since  1898. 

1  Total  number  of  members,  1812,  25  to  50;  1845,  70  to  100;  1868,  90 
to  120;  1879,  70  to  98;  1898,  98  to  116. 

Since  1845  each  parish  or  district  to  have  I  member  on  every  full 
ratio,  and  additional  fraction  greater  than  l/2,  but  each  parish,  and, 
since  1898,  each  ward  of  the  city  of  New  Orleans,  to  have  at  least 
one.  Thus  the  only  favoritism  is  to  those  parishes,  if  any,  which  are 
less  populous  than  the  smallest  New  Orleans  ward. 


561]       REPRESENTATION  IN  THE  LOWER  HOUSE         T69 

coordinate,  for  representative  purposes,  with  the  counties. 
Since  1867  the  Legislature  is  empowered  to  alter  the  boun- 
daries of  these  districts,  "  from  time  to  time  ",  so  as  to  pre- 
serve these  conditions,  and  in  1901  their  number  was 
changed  to  four.  The  actual  apportionment  of  members 
is  made  under  a  rule  which  discriminates  against  the  Bal- 
timore districts.1 

The  underlying  idea  in  both  these  States  was  pretty 
clearly  to  give  the  minority  party  in  each  of  the  two  cities 
a  chance  to  return  some  members,  instead  of  being  virtually 
disfranchised.  That  minority  representation  should  be 
fostered  with  especial  care  in  the  large  cities  is  natural  from 
every  point  of  view.  It  is  in  large  cities  that  unrepresented 
minorities  are  largest  and  the  evils  of  the  general  ticket 
system  are  thus  most  clearly  felt.  Since  also  the  minority 
party  in  the  large  city  is  apt  to  be  the  majority  party  in  the 
State,  in  control  of  the  Legislatures  and  of  the  entire  process 
of  framing  Constitutional  amendment,  its  interests  have 
usually  been  first  considered.  This  device  of  obligatory 
subdivision  was,  however,  very  quickly  extended  to  coun- 
ties; first,  in  1846,  by  New  York,  and  later  by  several 
States,  among  which  it  will  be  convenient  for  the  moment 
to  consider  only  those  two  in  which  the  single  member  dis- 

1  In  1864  an  extraordinary  sliding  scale  of  representation  was  in- 
troduced :  first,  I  member  for  every  5,000  persons,  or  fraction  greater 
than  y2,  until  five  members  had  been  reached;  then  I  for  the  next 
20,000,  or  fraction  greater  than  l/2 — that  is  to  say,  I  member  for  the 
next  10,000,  arid  none  for  the  10,000  after;  then  i  member  for  each 
80,000,  or  fraction  greater  than  y*.  Three  years  later  this  was  abandoned 
for  the  present  system:  counties  under  18,000  return  2;  under  28,000, 
3;  under  40,000,  4;  under  55,000,  5;  all  larger,  6;  each  Baltimore  dis- 
trict returns  the  same  number  as  the  largest  county.  Since  the  State 
contains  22  counties,  a  little  calculation  will  show  that  Baltimore, 
which  now  contains  almost  half  the  population,  can  never  return 
more  than  a  third  of  the  representatives. 


TERRITORIAL  BASIS  OF  GOVERNMENT 


[562 


trict  is  not  insisted  upon,  as  well.  These  were  New  York's 
important  neighbors,  Massachusetts,  and  (after  the  War) 
Pennsylvania.  In  New  York  and  Massachusetts  all  coun- 
ties were  required  to  be  thus  divided.  Pennsylvania,  after 
a  period  during  which  counties,  unions  of  counties,  cities, 
and  divisions  of  cities,  were  all  utilized,  settled  in  1873  upon 
the  following  plan  :  Cities  of  a  certain  size,  and  all  counties, 
are  to  be  represented  separately;  cities  entitled,  under  the 
system  of  apportionment,  to  more  than  four  representatives, 
and  counties  of  over  100,000  population,  must  be  divided 
into  districts;  other  cities  and  other  counties  doubtless 
may  be. 

The  successive  steps  in  the  formation  of  these  divisions 
are,  first,  the  determination  of  the  number  of  representa- 
tives which  the  county  or  city  as  a  whole  is  to  return  ;  and 
second,  the  actual  division,  by  the  districting  authority,  sub- 
ject to  such  additional  restrictions  as  may  be  imposed.  As 
regards  the  first  step,  the  same  tendency  that  we  have 
already  seen  so  often  reappears.  It  is  not  enough  that, 
through  a  limitation  upon  the  total  number  of  members, 
coupled  with  a  guarantee  of  at  least  one  member  to  every 
county,  the  least  populous  sections  are  almost  certain  to  be 
over-represented.  In  Pennsylvania,  and,  since  1894  in  New 
York,  mathematical  rules  are  added  which  enhance  the  dis- 
crimination.1 

1  Virtually  nothing  more  than  a  limitation  upon  total  number  of 
members  appeared  in  New  York,  1821-94  (128)  and  consistently  in 
Massachusetts  (240).  In  New  York,  the  guarantee  of  i  member  was 
only  to  counties  "  as  heretofore  established  and  separately  organized  ", 
and  excepted  the  county  of  Hamilton,  which  was  to  elect  with  Fulton 
county,  until  entitled  to  separate  representation.  In  18/4,  the  re- 
enactment  of  the  amended  article  extended  the  guarantee  to  the  one 
new  county  organized  since  1846;  a  saving  clause  was  also  added  to 
explain  that  these  provisions,  particularly  that  in  regard  to  Hamilton 
county,  did  not  debar  the  Legislature  from  its  complete  control  over 


563]       REPRESENTATION  IN  THE  LOWER  HOUSE         I7I 

Once  the  number  of  members  is  determined,  the  divisions 
are  made,  in  New  York  and  Massachusetts,  by  local  au- 
thorities, at  such  time  as  the  Legislature  determines  (in  the 
former  State),  or  at  specified  dates  (in  the  latter).1  This 
division  of  functions  was,  of  course,  suggested  by  the  process 
for  the  Federal  house,  in  which  Congress  apportions,  and 
each  State  Legislature  districts.  In  Pennsylvania,  how- 
ever, the  districting  is  performed  by  the  Legislature  itself. 

county  lines.  In  Massachusetts  the  counties,  for  representative  pur- 
poses, were,  in  one  special  case,  not  absolutely  identical  vuth  the  exist- 
ing administrative  divisions. 

The  Pennsylvania  rule  of  1873  is  very  cumbersome.  The  ratio  is 
fixed  at  1/200  of  the  population.  All  counties  return  at  least  I  mem- 
ber; counties  containing  less  than  5  ratios  return  i  member  for  every 
full  ratio  and  additional  H ;  larger  counties,  i  for  every  full  ratio, 
only.  Every  city  containing  a  population  equal  to  a  ratio  elects 
separately  its  proportion  of  the  county  representation;  what  happens 
to  fractions  in  such  a  case,  no  one  knows. 

In  New  York,  since  1894,  the  guarantee  of  separate  representa- 
tion applies  only  to  then  existing  counties,  as  before ;  one  county  has 
since  then  been  created.  The  total  is  fixed  at  150,  and  the  first  ratio 
is  obtained  by  using  this  as  a  divisor.  First  one  member  is  given  to 
every  county  containing  less  than  il/>  ratios  (with  the  special  excep- 
tion for  Hamilton,  as  before)  ;  then  2  members  to  every  other  county. 
Then,  the  smaller  counties  being  thus  made  happy  by  an  excess  of 
repiesentation  which,  in  practice,  amounts  to  six  or  eight  members, 
the  balance  are  distributed  among  the  counties  containing  over  2 
ratios,  on  the  basis  of  their  enumerated  population — that  is  to  say, 
on  a  new  and  larger  ratio,  the  fractions  or  "  remainders  "  over  which 
are  to  be  represented  in  the  order  of  their  size,  on  the  Carolina  plan, 
so  as  to  yield  the  fixed  total. 

1  In  New  York,  by  the  Boards  of  Supervisors,  in  gt.ueral.  But  in 
1874,  the  Board  of  Aldermen  was  substituted  in  the  city  and  county 
of  New  York;  and  in  1894,  the  Common  Council,  or  body  exercising 
its  powers,  "  in  any  city  embracing  an  entire  county  and  having  no 
Board  of  Supervisors  " — i.  e.,  in  New  York  City. 

In  Massachusetts  divisions  are  to  be  made  by  popularly  elected 
special  commissioners,  or,  in  case  the  Legislature  does  not  provide  for 
these,  by  the  County  Commissioners,  except  in  Suffolk  county,  and  by 
the  Mayor  and  Aldermen  of  Boston. 


172  TERRITORIAL  BASIS  OF  GOVERNMENT  [564 

In  New  York,  single-member  districts,  "  as  nearly  equal  in 
population  as  may  be  ",  already  familiar  in  connection  with 
other  Legislative  bodies,  were  now  first  required  for  the 
lower  house  as  well,  with  results  which  will  be  considered  in 
a  moment.  Massachusetts,  however,  merely  requires  that  not 
more  than  three  members  may  be  returned  by  any  one  dis- 
trict; Pennsylvania,  not  more  than  four.  Apart  from  the 
size  of  the  district,  the  following  rules  are  to  be  observed. 
In  New  York,  prior  to  1894,  districts  were  to  consist  of 
convenient  and  contiguous  territory,  without  dividing 
towns;  in  Massachusetts,  of  contiguous  territory,  without 
dividing  towns  or  city  wards;  in  Pennsylvania,  merely  of 
compact  and  contiguous  territory.  Since  1894,  however, 
New  York  has  gone  into  much  detail.  Districts  must  be 
compact,  without  dividing  towns  or  city  blocks;  they  must 
not  vary  from  one  another  more  than  one  border  town  or 
block;  nor  more  widely  than  the  least  discrepancy  which 
would  result  from  a  redistribution  of  towns  and  blocks 
capable  of  being  included  within  either  of  two  districts ;  they 
must  lie  wholly  within  a  Senate  district,  and  the  same  num- 
ber within  each;  or,  if  this  is  not  possible,  then  the  larger 
number  must  lie  within  the  most  populous,  or  the  smaller 
number  within  the  least  populous,  Senate  district  in  the 
county.1 

4.  Obligatory  single-member  districts,  following  New  York 

The  action  of  New  York,  in  incorporating  the  principle 

of  single-member  districts  in  its  instrument  of  1846,  marks 

1  References : 

La.  Const.  1812,  ii,  4,  6;  1845,  8,  16;  1852,  8,  16;  1868,  20,  21,  22;  1879, 
16,  18;  1898,  18,  20. 

N.  Y.  Const.  1846,  iii,  2,  4,  5;  Am.  1874,  iii,  5;  Const.  1894  iii,  2,  4,  5. 
Mass.  Am.  1857,  xxi. 

Md.  Const.  1864,  iii,  2-5 ;  1867,  iii,  4,  5 ;  Am.  1901,  iii,  2,  4. 
Pa.  Const.  1873,  ii,  17. 


565]       REPRESENTATION  IN  THE  LOWER  HOUSE 

a  turning  point  in  the  way  in  which  the  problem  of  appor- 
tionment was  conceived.  Prior  to  the  War  with  Mexico, 
"  apportionment  "  was  pictured  primarily  as  a  distribution 
of  members  among  local  districts  already  in  existence ;  dis- 
tricts then  might  or  might  not  be  combined,  for  the  purpose 
of  insuring  a  representation  proportionate  to  their  politi- 
cal weight ;  they  might  or  might  not  be  divided,  for  the  pur- 
pose of  preventing  large  voting  minorities  from  being  un- 
represented. This  conception,  as  we  have  seen,  lingered 
for  a  time  in  the  East. 

In  the  West,  on  the  other  hand,  the  delimitation  of  repre- 
sentative districts  began  at  once  to  be  considered  as  the  very 
essence  of  "  apportionment ",  and  equality  among  such  dis- 
tricts to  be  regarded  as  the  ideal.  The  Federal  Apportion- 
ment Act  of  1842^  in  which,  for  the  first  time,  single-mem- 
ber Congressional  districts  were  made  obligatory  in  every 
State,  undoubtedly  had  a  powerful  influence  in  causing  this 
type  of  district  to  be  regarded  as  the  norm.  If  it  was  not 
universally  insisted  upon,  this  was  because  other  considera- 
tions came  into  play.  Either  already  existing  representa- 
tives in  the  Legislatures  and  Constitutional  Conventions  felt 
reluctant  to  deprive  their  constituents  of  advantages  which, 
under  existing  systems,  they  enjoyed;  or  the  slight  inequali- 
ties which  resulted  from  the  continued  recognition  of  ad- 
ministrative lines  were  felt  to  be  not  as  great  an  evil  as  the 
danger  of  partisan  gerrymandering  which  would  exist,  if 
the  apportioning  body  were  free  to  make  mathematically 
equal  divisions.  The  existence  of  the  party  system  of  gov- 
ernment, in  other  words,  has  caused  modifications  of  the 
single-member  principle  which  in  some  cases  are  justifiable 
on  broad  grounds,  and  in  some  cases  are  not,  but  which  in 
all  cases  are  regarded  by  everybody  as  exceptions  to  the 

1  Vide  ch.  ix,  sec.  i,  p.  219,  infra. 


174  TERRITORIAL  BASIS  OF  GOVERNMENT  [566 

normal  and  easily-understood  single-district  system.  Such 
being  the  habit  of  thought  under  which  subsequent  provi- 
sions have  been  drafted,  such  will  be  the  best  point  of  view 
from  which  to  approach  them. 

The  new  State  of  Wisconsin  led  off,  in  1848,  with  the 
only  pure  form  of  the  obligatory  single-district  system  for 
the  lower  house  that  has  ever  existed.  A  total  of  from  54 
to  100  members  are  provided,  to  be  chosen  by  single  dis- 
tricts, "  such  districts  to  be  bounded  by  county,  precinct, 
town  or  ward  lines,  to  consist  of  contiguous  territory,  and  to 
be  in  as  compact  form  as  possible  ".  The  requirement  that 
the  Legislature  is  "  apportion  and  district "  the  members, 
according  to  the  enumerated  population,  throws  a  side-light 
upon  the  changing  meaning  of  the  term  "  apportionment ". 
From  this  State  the  idea  of  obligatory  single  districts  has 
spread  to  the  five  contiguous  States  of  Kentucky,  Michigan, 
Illinois,  Missouri  and  Kansas,  as  well  as  to  California,  and 
(for  a  time)  to  Pennsylvania,  but  in  all  cases  with  important 
modifications.  Temporarily,  in  Kentucky  and  Pennsyl- 
vania, that  is  to  say,  it  was  applied  only  to  urban  districts; 
while  in  the  other  cases,  the  system,  although  it  has  been 
generally  introduced,  continues,  as  in  New  York,  to  revolve, 
as  it  were,  about  the  county,  as  upon  a  pivot. 

The  Kentucky  system  of  representation,  in  force  between 
1850  and  1890,  was  a  cumbersome  grafting  of  the  new  idea, 
with  others  borrowed  from  various  sources,  upon  its  own 
original  system.  In  the  first  place,  ten  groups  of  specified 
counties  were  established  as  *'  distributing  districts  ",  on  the 
Virginia  plan,  their  permanence  being  protected  by  the  re- 
quirement that  in  case  new  counties  should  be  erected  out 
of  territory  lying  within  more  than  one  district,  such  county 
should  be  attached  to  that  district  which  had  the  least  num- 
ber of  qualified  electors.  The  number  of  representatives 
periodically  distributed  to  each  of  these  districts  was  then 


567]       REPRESENTATION  IN  THE  LOWER  HOUSE 

to  be  redistributed  among  counties,  the  larger  urban  dis- 
tricts, and  unions  of  counties,  much  on  the  original  system. 
The  additional  complication  now  introduced  was  that  if 
cities  or  towns  should  be  entitled  to  more  than  one  member, 
they  must  be  subdivided  into  single-member  districts,  com- 
pact, composed  of  contiguous  "  squares  ",  and  without  di- 
viding wards  or  municipal  divisions  except  so  far  as  nec- 
essary to  equalize  the  districts.1 

Somewhat  similar  was  the  system  temporarily  in  force  in 
Pennsylvania,  between  the  original  county  and  city  plan, 
and  the  county,  city,  and  subdivision  plan  already  described 
as  to-day  existing.  The  unit  here,  between  1857  and  1873, 
was  the  county;  the  union  of  counties;  and  any  city  that 
might  contain  a  sufficient  enumerated  population  to  entitle 
it  to  more  than  one  member.  Such  a  city  was  to  be  separ- 
ately represented,  and  was  also  to  be  divided  into  single- 
member  districts,  of  contiguous  territory,  as  nearly  equal  in 
enumerated  population  as  might  be.2 

1  The  total  number  of  members  was  fixed  at  100 ;  these  were  to  be 
apportioned  among  the  ten  districts,  as  with  Maine  counties,  instead 
of  being  permanently  allotted,  as  in  Virginia.     Cities  and  towns  were 
to  be  given  separate  representation  on  full  ratios,  as  always;  but  the 
Alabama  qualifying  touch  was  added,  that  the  balance  of  the  county 
must  also  be  entitled  to  separate  representation.     The  original  plan 
of  crediting  residuums  to  adjacent  counties  was  abandoned   for  the 
Carolina  plan  of  representing  the  largest  fractions  in  order  of  their 
size ;    this,    of    course,    did    away    with    any   possibility   of    flotorials. 
Counties   containing  less  than   a   full   ratio  were  brought  within  the 
general  principle ;  that  is  to  say,  if  these  fractions  were  large  enough 
to  obtain  a  member,  before  the  whole  number  was  used  up,  well  and 
good.     To  guard  against  the  possibility  of  failure,  however,   it  was 
provided  that  a  small  county  might  be  joined  with  an  adjacent  county 
or  counties,  to  return  one  member.    This  system  lasted  until  1890. 

2  The  total  number  of  members  was  100.     Not  more  than  3  coun- 
ties might  be  joined;  counties  containing  as  few  as  3,500  "taxables" 
might    be    accorded    separate    representation;    and    it   was    expressly 
provided  that  no  county  might  be  divided.    Flotorials  would  appear  to 
be  possible  under  this  system. 


176  TERRITORIAL  BASIS  OF  GOVERNMENT  [568 

In  the  other,  and  surviving,  cases,  the  retention  of  the 
county  as  the  original  unit,  by  the  divisions,  and  (usually) 
by  the  unions  of  which,  approximately  equal  districts  are  to 
be  secured,  may  be  justified  as  a  check  upon  partisan  gerry- 
mander. Michigan  contains,  next  to  New  York,  the  oldest 
and  the  crudest  system.  This  was  one  of  the  States  in 
which,  from  the  beginning,  the  simple  county  system  had 
been  modified  by  the  requirement  that  only  organized  coun- 
ties were  entitled  to  separate  representation,  and  that  no 
county  thereafter  organized  should  be  given  separate  repre- 
sentation until  it  should  contain  a  full  ratio.1  The  organ- 
ized county,  with  such  territory  as  may  be  attached  thereto, 
has  accordingly,  since  1850,  been  the  "  pivot ".  If  entitled 
to  more  than  one  of  the  limited  total  number  of  members, 
it  is  to  be  divided  into  single-member  districts  by  its  Board 
of  Supervisors,  on  the  New  York  plan.  Territory  outside 
of  separately-represented  counties  is  to  be  divided  by  the 
Legislature  into  districts,  as  nearly  equal  in  enumerated 
population  as  may  be,  without  dividing  towns  or  cities.  In 
curious  contrast,  however,  to  the  tendency  in  several  other 
States,  townships  or  cities,  entitled  to  more  than  one  mem- 
ber, are  not  to  be  divided,  but  are  to  elect  by  general  ticket.2 

In  Kansas,  no  local  action  is  provided,  and  each  county 
is  to  have  (as  in  New  York)  at  least  one  member,  no 
unions  appearing.  By  an  amendment  adopted,  however, 
in  1873,  a  county  representative  is  to  be  admitted  by  the 
Legislature  only  if  250  legal  votes  were  cast  at  the  preced- 
ing general  election,  and  a  county  in  which  less  than  200 

1  Vide  p.  154,  note  2,  supra, 

2  The  total  number  is  64  to  100.     Counties,  etc.,  containing  one-half 
ratio  have  separate  representation.     Districts  are  to   consist  of  con- 
venient and  contiguous  territory,  and  the  rule  as  to  townships  and 
cities  appears  to  apply  to  the  divisions  of  counties. 


569]       REPRESENTATION  IN  THE  LOWER  HOUSE 

votes  were  cast  is  to  be  "  attached  to  and  constitute  part  of 
the  representative  district  of  the  county  lying  next  adjacent 
on  the  east."  In  Missouri  also  there  are  no  unions,  and  the 
single-member  subdivisions,  which  are  to  be  made  by  the 
County  Courts,  as  nearly  equal  in  population  as  may  be, 
may  be  altered  from  time  to  time  as  the  public  convenience 
may  require;  counties  entitled  to  more  than  ten  represen- 
tatives, however  (i.  e.}  St.  Louis),  are  to  be  divided  into 
districts  returning  from  two  to  four  members  each.  In  the 
other  three  States, '  the  total  number  of  members ,  is  not 
merely  limited,  but  fixed;  districts  to  the  same  number,  as 
nearly  equal  in  enumerated  population  as  may  be,  are  to  be 
formed  by  the  Legislature,  and  are  to  consist  of  complete 
counties,  or  to  lie  wholly  within  a  county.1 

Additional  rules  in  the  four  Middle  States  restrict  the 

1  Kansas  set  merely  a  maximum  of  100  members  until  1873  \  since 
then,  of  125. 

Missouri  still  establishes  a  permanent  ratio  of  1/200,  giving  to  coun- 
ties containing  under  2^/2  ratios  I  member;  under  4,  2;  under  6,  3; 
over  6,  4,  and  I  additional  for  every  2j^  ratios.  New  counties,  how- 
ever, are  to  be  attached  to  the  county  from  which  the  greatest  amount 
of  their  territory  is  taken,  until  they  obtain  a  full  ratio. 

In  Illinois  the  total  is  51,  this  being  also  the  divisor  to  be  used  in 
determining  the  ratio.  The  districts  are  to  be  contiguous  and  compact, 
and  as  nearly  equal  in  population  as  may  be,  under  the  following  limi- 
tations: No  district  shall  contain  less  than  ^  ratio;  counties  contain- 
ing between  i^  and  2  ratios  may  be  divided  into  two;  larger  counties 
into  as  many  districts  as  they  contain  full  ratios.  These  districts  are 
properly  Senatorial  districts,  but  are  used  also  for  the  lower  house, 
under  a  system  of  minority  representation. 

California  demands,  in  addition  to  the  recognition  of  county  lines, 
only  contiguous  territory  and  a  total  of  80. 

In  Kentucky  the  total  is  100.  Counties,  if  united,  must  be  contig- 
uous; not  more  than  two  shall  be  united,  unless  the  requirement  of 
approximate  equality  forbids;  when  inequality  of  population  is  inevi- 
table (i.  e.  always)  the  advantage  is  to  be  given  to  the  more  extensive 
(i.  e.  less  densely  populated)  district.  If  the  idea  were  to  provide  for 
unequal  growth,  the  arrangement  should,  of  course,  be  just  the  opposite. 


178  TERRITORIAL  BASIS  OF  GOVERNMENT          [570 

Legislature,  and  discriminate — not  severely  except  in  Miss- 
ouri— against  the  more  densely-populated  counties.1 

5.  Permissive  single-member  districts,  with  the  county  check 

In  Indiana,  since  1851,  and  later  in  the  new  States  of 
Oregon,  Utah  and  Oklahoma,  the  counties  are  the  original 
units  of  apportionment,  which  are  then  to  be  grouped  as 
convenient,  and  may  or  may  not  be  subdivided ;  nor  is  there 
any  requirement  that  the  districts  thus  formed  shall  return 
each  a  single  member.  In  California,  also,  before  the  ob- 
ligatory rule  went  into  effect,  there  was  a  transition  period 
during  which  divisions  of  counties  were  merely  permitted — 
here,  however,  into  single-member  districts,  only.2 

In  Oklahoma,  in  case  counties  are  divided,  towns,  and 
city  wards  which  constitute  single-voting  precincts,  may 
not  be  divided,  and  New  York's  rule  for  the  location  of 
border  units  has  been  copied.  Flotorial  districts  would 
seem  to  be  possible  in  all  five  States,  including  even  Utah, 
which  is  the  only  one  to  provide  that  each  county  must  have 
at  least  one  member.  The  total  number  of  members  is  of 
course  everywhere  limited ;  mathematical  rules  for  their  dis- 
tribution appear  only  in  Oregon  and  Oklahoma,  and  these 

1  References : 

Wise.  Const.  1848,  iv,  2-4. 

Ky.  Const.  1850,  ii,  5,  6,  13;  1890,  33,  35. 

Mich.  Const.  1850,  iv,  3,  4;  *  1908,  v,  3,  4. 

Pa.  Am.  1857,  i,  2,  4  (until  1873). 

Kans.  Const.  1859,  ii,  *  2,  26;  x,  i,  2;  Am.  1873,  ii,  2. 

111.  Const.  1870,  iv,  6,  "Minority  Representation." 

Mo.  Const  1875,  iv,  2,  3,  7,  9;  ix,  3. 

Cal.  Const.  1879,  iv,  5>  6. 

2  These  are  the  only  States  in  which  it  is  clear,  by  express  grant,  or 
by  implication,  that  the  Legislature  may  divide  counties  into  represen- 
tative districts  at  its  own  discretion.    In  some  of  the  States,  classified 
under  sections  i  and  2,  the  same  power  may  exist.     Vide  remarks  at 
the  beginning  of  section  3,  pp.  163-7,  supra. 


REPRESENTATION  IN  THE  LOWER  HOUSE 

discriminate  against  the  more  populous  counties  in  Okla- 
homa.1 

6.  Unrestricted  formation  of  districts 
Finally,  since  the  War,  four  Western  States,  and  Vir- 
ginia, have  required  their  Legislatures  to  carve  out  dis- 
tricts, and  distribute  members  among  them,  at  the  stated 
periods,  free  from  any  restrictions  at  all,  other  than  a  limi- 

1  Total  number  of  members  in  Indiana,  100;  in  California,  30  to  80; 
in  Utah,  36  to  90.  In  Indiana  and  California,  districts  not  wholly 
within  a  county  must  consist  of  complete  contiguous  counties. ' 

Oregon  prescribes  a  maximum  of  60  members.  Fractions  of  over  J^, 
resulting  from  division,  are  to  foe  represented  by  a  member,  and  a 
county  not  entitled  to  separate  representation  is  to  be  attached  to 
"  some  adjoining  county."  The  evident  intention  of  the  rule  is  to  dis- 
regard smaller  fractions,  instead  of  relying  upon  the  flotorial  device 
to  equalize  representation.  It  would  seem,  however,  that  if  strictly 
applied,  semi-flotorials —  districts  composed  of  two  counties,  one  of 
which  is  separately  represented — must  sometimes  be  formed. 

Oklahoma  has  a  maximum  of  109,  with  the  Ohio  fixed  ratio  of  i/ioo. 
Counties  containing  y2  ratio  obtain  I  member;  i£4,  2;  then  I  addi- 
tional on  every  full  ratio;  but  no  county  to  take  part  in  (i.  e.,  inde- 
pendently, or  as  part  of  a  flotorial)  the  election  of  more  than  7.  For 
unrepresented  fractions  of  a  ratio,  the  Ohio  elaborate  part-time  rule 
(vide  p.  159,  supra}  is  provided,  with  one  change:  if  representation 
in  only  one  of  the  five  biennial  sessions  is  secured,  the  particular  ses- 
sion is  not  specified.  The  obsolete  Ohio  provision  for  detaching 
counties,  entitled  to  representation,  from  districts  already  formed, 
and  for  joining  undersized  counties  to  form  new  districts  (vide  p. 
165,  supra)  is  also  adopted  with  one  modification :  the  county  need 
not  now  be  joined  to  its  least  populous  neighbor.  Flotorials,  in  spite 
of  these  apparent  efforts  to  do  away  with  them,  appear  in  the  accom- 
panying provisional  apportionment,  in  the  shape  both  of  "  additional 
districts,"  composed  of  counties  already  represented,  and  of  a  county 
returning  one  member  at  large,  in  addition  to  single-district  members. 
References : 

Ind.  Const.  1851,  iv,  2,  4,  5,  6. 

Oreg.  Const.  1857,  iv,  2,  3,  5,  6,  7. 

Cal.  Am.  1862,  iv,  3,  30  (until  1879). 

Utah  Const.  1895,  vi,  3;  ix,  2-4. 

Okla.  Const.  1907,  v,  10,  12-16. 


TERRITORIAL  BASIS  OF  GOVERNMENT  [572 

tation  upon  the  total  number  of  members,  and  a  recognition 
(in  Virginia,  not  expressed)  of  the  proportionate  principle.1 
In  these  many  variants  of  the  original  Pennsylvania  plan 
a  recent  tendency  to  leave  more  and  more  freedom  to  the 
Legislature  clearly  appears.  This  reached  its  culmination 
in  a  group  of  instruments,  next  to  be  considered,  in  which 
the  ideal  of  a  rigidly  periodic  reapportionment  has  been 
itself  abandoned. 

III.   DISCRETIONARY  REAPPORTIONMENT 

The  rigidly  periodic  system  of  apportionment,  exem- 
plified in  the  preceding  schemes,  involves  two  essentials: 
first,  the  duty  of  the  Legislature,  or  other  apportioning 
body,  to  act  at  the  stated  intervals ;  second,  its  incapacity  to 
act  at  any  other  time.  The  periodic  duty  is  always  clearly 
expressed;  the  intervening  incapacity  is  often  only  to  be 
inferred  from  this,  and  is  subject  to  certain  exceptions. 
Thus,  in  four  Southern  States  the  Legislature  has  been  ex- 
pressly authorized  to  make  rearrangements  incidental  to  the 
erection  of  new  administrative  units ; 2  in  Maryland,  the 

1  In  Nebraska,  until  1875,  the  districts  were  required  to  be  formed 
of  contiguous  territory,  and  as  compact  as  might  be. 

Limitations  of  total  number,  and  references: 

Nevada  (Const.  1864,  iv,  3,  5;  xv,  6,  13)  maximum  of  56. 

Nebraska  (Const.  1866,  ii,  3,  5,  8)  39  to  75;  (Const.  1876,  iii,  2,  3) 
maximum  of  100. 

South  Dakota  (Const.  1889,  iii,  2,  5)  75  to  135. 

Washington  (Const.  1889,  ii,  2,  3)  63  to  99.  For  an  indirect  restric- 
tion, however,  caused  by  the  rule  in  regard  to  Senatorial  districts,  vide 
ch.  viii,  sec.  ii,  6,  pp.  211,  212,  infra. 

Virginia  (Const.  1902,  42,  43)  92  to  100. 

The  original  Illinois  provision,  in  force  between  1818  and  1848, 
was  also  very  broad,  requiring  apportionment  merely  among  "  counties 
and  districts."  Undoubtedly,  however,  only  unions  of  counties,  or  dis- 
tricts formed  outside  of  organized  counties,  were  contemplated. 

2  Virginia,    1830-50;    Alabama,    1867-75;   Florida,   since   1885;    South 
Carolina  since  1895.    Cf.  also  Mississippi  since  1890,  and  New  Mexico, 
p.  183,  notes,  infra. 


573]       REPRESENTATION  IN  THE  LOWER  HOUSE         jgi 

Baltimore  Legislative  districts  may  be  altered  at  any  time; 
in  Missouri,  the  subdivisions  of  any  county  may  be  so 
altered;  in  New  Jersey,  Maryland  and  Arkansas,  finally,  a 
general  reapportionmeht  may  be  made  at  any  time,  provided 
a  fresh  enumeration  is  made  for  this  purpose. 

The  earliest  direct  assault  upon  the  rigid  periodic  ideal 
came  in  the  weakening  of  the  original  obligation  to  a  mere 
authorization.  In  Minnesota,  since  1857 — f°r  brief  periods 
after  the  War,  in  Missouri,  Arkansas  and  Georgia — re- 
cently in  Mississippi  and  New  Mexico — the  apportionment 
may  not  be  changed  except  at  the  stated  periods,  b'ut  need 
not  be,  even  then.  That  is  to  say,  if  the  Legislature  is 
contented  with  the  existing  distribution  of  representatives, 
it  is  under  no  Constitutional  obligation  to  make  changes. 
The  practical  distinction,  of  course,  between  a  Constitu- 
tional obligation,  for  the  enforcement  of  which  no  sanction 
exists  except  the  pressure  of  public  opinion — and  a  Con- 
stitutional privilege,  which  is  likely  to  be  converted  by 
this  same  public  opinion,  into  a  moral  and  political  obli- 
gation— is  not  very  sharp.  From  the  purely  formal  point 
of  view,  however,  there  is  all  the  difference  in  the  world; 
and  this  difference  is  likely  to  have  some  influence,  if  not  a 
decisive  one,  in  practice.  In  New  York,  for  instance,  the 
Constitutional  obligation  to  reapportion  the  Legislature,  at 
the  first  session  after  the  return  of  the  Enumeration,  in  1876 
broke  down,  and  it  was  not  until  1879  tnat  tne  Assembly 
was  actually  reapportioned ;  who  shall  say  that  the  party 
majority  would  have  even  then  made  a  change,  which  de- 
prived it  of  six  sure  seats,  if  they  could  have  used  the  Con- 
stitutional text  to  justify  inaction?  From  a  narrowly 
legalistic  point  of  view,  the  attempt  to  impose  positive  duties 
upon  the  Legislature,  without  providing  a  legal  remedy  in 
case  it  refuses  to  act,  is  an  absurdity,  which  leads  to  constant 
violations  of  such  duties  in  practice.  Looked  at  broadly, 


182  TERRITORIAL  BASIS  OF  GOVERNMENT  [574 

however,  the  reliance  upon  public  opinion  and  the  political 
remedy  of  the  polls  has  been  rather  remarkably  justified. 
If  the  letter  of  such  provisions  has  been  violated,  the  spirit 
has  almost  always  triumphed  in  time ;  the  people  have  shown 
themselves  an  occasionally  dilatory,  but  on  the  whole  effi- 
cient, guardian  of  the  written  Constitution.  A  change  by 
which  the  Legislature,  therefore,  rather  than  the  Constitu- 
tional instrument,  is  made  the  determining  legal  authority 
as  to  whether  a  reapportionment  shall  be  made,  is  a  con- 
siderable step  in  the  direction  of  restoring  to  the  Legis- 
lature its  original  control  over  its  own  composition. 

In  case  the  Legislatures  of  these  States  do  make  reap- 
portionments,  then,  of  course,  rules  are  provided  under 
which  they  must  act.  In  Minnesota  and  in  Arkansas,  we 
have,  in  addition  to  a  limitation  upon  the  total  number  of 
members,  only  the  requirement  that,  in  the  formation  of 
Senatorial  districts,  Representative  districts  may  not  be  di- 
vided.1 In  Georgia,  the  simple  county  unit,  as  always,  ap- 
peared, with  limitation  upon  total  number  of  members  only.8 
Missouri  had  a  system  of  obligatory  single-member  dis- 
tricts, identical  with  that  now  in  force,  except  that  the  dis- 
crimination against  the  more  populous  counties  was  even 
more  severe.3  Mississippi  has  a  system  of  permissive  single- 
member  districts,  under  a  strong  county  check,  complicated 
by  the  Virginia-Kentucky  device  of  permanent  "  distrib- 

1For  the  restrictions  upon  the  formation  of  Senatorial  districts  in 
these  States,  vide  ch.  viii,  sec.  ii,  6,  8,  pp.  211-213,  infra. 
References : 

Minnesota  (Const.  1857,  iv,  2,  23,  24)  not  more  than  I  member  for 
every  2,000  inhabitants. 

Arkansas  (Const.  1868,  v,  7-9— until  1874)  82  members. 

3  Maximum  of  175.    Not  even  recognition  of  the  proportionate  prin- 
ciple was  required.     (Ga.  Const.  1868,  iii,  3— until  1877.) 

8  All  counties  return  i  member,  or  i  for  every  3  full  ratios.     (Mo. 
Const  1865,  iv,  2,  7,  8— until  1875.) 


575]       REPRESENTATION  IN  THE  LOWER  HOUSE 

uting  districts  'V  New  Mexico  has  apparently  a  county 
union  system.2 

In  addition  to  the  foregoing  there  is  a  small  group  of 
Western  States,  in  which  precisely  the  contrary  development 
has  occurred.  That  is  to  say,  the  Legislature  must  reap- 
portion  at  stated  intervals,  but  may  also  do  so  "  from  time 
to  time,  as  public  convenience  may  require  ",  and  without 
being  subject  to  the  expense  or  delay  involved  in  taking  a 
fresh  enumeration.  The  evolution  of  this  Legislative  privi- 
lege, which  of  course  justifies  a  sincere  partisan  in  voting 
for  a  reapportionment  whenever  his  party's  interest  appears 
to  demand  it,  is  rather  interesting. 

In  Missouri  since  the  War,  as  has  already  been  shown, 
the  obligatory  single-member  divisions  of  counties  might 
be  altered  by  the  County  Courts,  under  the  above  rule,  and 
to  this  extent  the  prohibition  upon  change,  except  at  stated 
intervals,  was  already  modified.  The  apportionment  proper, 
however,  might  be  made  only  at  the  stated  intervals  by  the 
Legislature,  which  had  itself  no  control  over  the  subsequent 
division  of  the  larger  counties  into  these  "  Representative 
districts  ",  as  they  were  termed.  Now  in  1876,  the  Consti- 
tutional Convention  of  the  new  State  of  Colorado,  following 
the  prevailing  customs  of  borrowing  provisions  from  the 
most  recent  convenient  model,  lifted  bodily  from  the  Mis- 

1  Three  absolutely  permanent  districts  are  defined,  m  terms  of  coun- 
ties as  they  then  existed,  among  which  from  100  to  133  members  are 
to  be  equally  divided.  Every  county  is  to  have  at  least  one  member, 
and  new  counties  may  be  represented  at  once,  without  waiting  for  the 
regular  apportioning  session.  The  accompanying  provisional  appor- 
tionment shows  that  inequalities  of  a  single  member,  among  the  dis- 
tributing districts,  are  permissible,  and  that  both  subdivisions  of  coun- 
ties and  flotorial  unions  are  allowed.  (Miss.  Const.  1890,  254,  256.) 

3  House  of  49  members.  "  Each  county  included  in  each  district 
shall  be  contiguous  to  some  other  county  therein,"  and  newly  created 
counties  to  be  annexed  to  some  contiguous  county,  (*  N.  Mex.  Const. 
1911,  iv,  3,  "Apportionment"). 


TERRITORIAL  BASIS,  OP  GUl-'ERNMEXT  [576 

souri  instrument  of  1875  the  clause  in  regard  to  changes  in 
Representative  districts — perhaps  only  with  the  intention 
of  authorizing  those  special  changes  which  are  convenient 
when  new  counties  are  created — and  in  1889  Montana  and 
Wyoming  did  the  same.  But  in  these  three  States,  the 
county  union  system  of  representation  was  adopted,  instead 
of  Missouri's  obligatory  single-district  plan;  the  counties, 
or  unions  of  counties  to  be  formed  by  the  Legislature,  were 
the  only  Representative  districts  allowed;  an  authorization 
to  change  them,  at  any  time,  was  therefore  equivalent  to 
permitting  the  Legislature  to  exercise  its  entire  powers  of 
reapportionment  at  any  time  that  it  might  wish  to.1 

If  any  doubt  exists  as  to  the  effect  of  this  provision  in 
making  the  Legislature  capable,  at  all  times,  of  exercising 
powers,  which,  at  stated  times,  are  imposed  upon  it  as  a 
duty,  this  doubt  will  perhaps  be  dispelled  by  examining  the 
provisions  of  still  a  fourth  State,  North  Dakota.  Here  a 
very  remarkable  system  of  representation  appears.  For  the 
upper  house,  the  obligatory  single-district  plan,  with  county 
check,  has  been  adopted,  the  districts  to  be  as  nearly  equal 
as  may  be,  in  the  number  of  inhabitants  entitled  to  represen- 
tation. Among  these  districts,  a  limited  total  of  lower 
house  members  is  then  to  be  apportioned,  under  no  restric- 
tion at  all  as  to  the  basis  on  which  the  apportionment  is  to 
be  made;  while  as  to  the  time  of  apportionment,  it  is  ex- 

1  Districts  are  to  consist  of  complete  contiguous  counties,  as  compact 
as  may  be.  In  Colorado,  the  total  number  of  Senators  and  Represen- 
tatives combined  is  to  be  from  75  to  100,  and  the  number  of  Represen- 
tatives is  to  be,  as  near  as  may  be,  two-thirds  of  the  total.  In  Wy- 
oming, the  number  of  Representatives  is  to  be  from  two  to  three  times 
the  number  of  Senators,  which  itself  is  not  limited.  In  Montana  there 
is  no  limit. 

References : 

Colo.  Const.  1876,  v,  45-47. 

Wyom.  Const.  1889,  iii,  3,  "Apportionment,"  2,  3. 

Mont.  Const.  1889,  vi,  2,  3. 


577]       REPRESENTATION  IN  THE  LOWER  HOUSE 

pressly  provided  that  both  districts  and  apportionment  shall 
be  made  at  the  stated  intervals,  but  may  be  made  at  any 
regular  session.1 

Finally,  the  culmination  of  Legislative  control  is  reached 
in  Idaho  and  Arizona.  In  the  Northern  State,  a  modified 
county  union  system,  under  which  separate  representation 
is  granted  to  each  county,  but  flotorials  are  permitted,  is  in 
force,  but  the  limited  total  of  members  is  merely  "  to  be 
apportioned  as  may  be  provided  by  law  " ;  that  is  to  say, 
neither  basic  principle,  nor  the  time,  is  prescribed  or  re- 
stricted in  any  manner.2  In  Arizona  no  restriction'  of  any 
sort  appears,  except  an  implied  prescription  of  the  county 
unit.3 

IV.    SUMMARY 

To  recapitulate:  The  seven  States  in  which  counties  and 
unions  of  counties  survive  to-day  as  the  only  units  of  repre- 
sentation constitute  a  broken  semi-circle  running  from  Maine 

1  The  number  of   Senators,   and  consequently  of  districts,  is  from 
30  to  50;  of  Representatives,  from  60  to  140;  districts  are  to  be  com- 
pact, and  to  consist  of  complete  counties,  or  to  lie  wholly  within  a 
county.     By  the  accompanying  provisional  apportionment,  31   districts 
were  defined,  returning  usually  2  members  each  to  the  lower  house,  but 
in  six  cases,  i,  in  four  cases,  3,  and  in  one  case,  4  members.     The  in- 
tend: of  the  provision  is,  doubtless,  to  enable  the  Legislature  to  make  up, 
in  the  lower  house,  for  inequalities  which,  because  of  the  insistence 
upon  county  lines,  must  occur  in  the  upper ;  or  possibly,  to  permit  an 
increased  representation  to  rapidly  growing  counties,  upon  their  esti- 
mated increase  of  population  between  two  censuses.    The  actual  lan- 
guage employed,  however,  would  permit  the  most  arbitrary  distribution 
of  members. 

N.  D.  Const.  1889,  26,  29,  32,  35,  214. 

2  Total  number,  36  to  60.    Each  county  to  be  entitled  to  one  member, 
and  other  districts  (flotorials)  to  consist  of  contiguous  complete  coun- 
ties.    (Idaho  Const.,  iii,  2,  4,  5.) 

3  Members  must  be  residents  of  the  "  county  from  which  elected." 
No  limitation  even  upon  their  total  number.     (*  Ariz.  Const.  1911,  iv, 

2,    I,    2.) 


186  TERRITORIAL  BASIS  OF  GOVERNMENT  [578 

(towns  and  unions  of  towns)  in  the  extreme  northeast, 
through  West  Virginia  and  Tennessee  to  Texas,  on  the 
Gulf,  thence  up  through  Colorado  and  Wyoming  to  Mon- 
tana again  on  the  northern  border — the  terminal  moraine, 
so  to  speak,  of  a  Continental  movement  originating  in  Ken- 
tucky and  Illinois.  In  the  Eastern  one  of  the  three  sections 
into  which  the  Union  is  thus  roughly  divided,  lie  the  older, 
non-periodic  systems,  of  five  little  States,1  and  an  inter- 
mediate group  of  seven,2  in  which  the  periodic  principle  has 
been  applied  only  to  the  county;  by  reversion,  this  inter- 
mediate system  has  also  reappeared  in  Ohio  and  Iowa.  The 
central  area  of  disturbance  is  more  notable,  however,  for 
two  well-defined  later  movements,  centering  here:  an  in- 
sistence upon  single-member  districts,  which  appears  in 
eight  States  here,3  and  in  California  to  the  West;  and  an 
almost  complete  removal  of  restrictions,  which  has  broken 
through  even  the  Allegheny  barrier,  appearing  in  six  States 
in  all,  in  all  three  sections.*  In  ten  other  States,  lying 
usually  on,  or  just  outside,  the  "  moraine  ",  conflicting  ten- 
dencies have  produced  almost  every  conceivable  variety  of 
provision.5  Independently  of  the  above  distinctions,  the 
periodic  principle  has  itself  been  weakened,  in  various  ways, 
in  half  a  dozen  contiguous  Western  States,6  and  in  Miss- 
issippi. Finally,  either  through  the  requirement  that  every 
county  shall  have  at  least  one  member,  or  in  more  flagrant 
ways,  the  less  populous  towns  or  counties  are  favored  at 
the  expense  of  the  densely-populated  counties  or  cities  in 

1  N.  H.,  Vt,  Conn.,  R.  I.,  Del. 

3  N.  J.,  N.  C,  S.  C,  Ga.,  Fla.,  Ala.,  Ark. 

SN.  Y.,  Wise.,  Mich.,  Ky.,  Mo.,  Kans.,  and,  in  modified  form,  111. 
and  N.  D. 

4  Minn.,  S.  D.,  Neb.,  Nev.,  Wash.,  Va. 

6  Mass.,  Pa.,  Md.,  Miss.,  La.,  Okla.,  Utah,  Idaho ;  also  Ind.  and  Oreg. 
6  Minn.,  N.  D.,  Mont.,  Idaho,  Wyom.,  Colo. 


REPRESENTATION  IN  THE  LOWER  HOUSE 

twenty-one  out  of  twenty-six  States  east  of  the  Mississippi,1 
in  five  out  of  the  eleven  States  between  the  Mississippi  and 
the  Rockies,2  in  two  out  of  the  eleven  Rocky  Mountain  or 
Pacific  States.3 

Clearly  the  problem  of  the  proper  distribution  of  repre- 
sentatives is  far  from  being  solved.  Apart  from  the  tech- 
nical diversity  of  these  various  schemes,  which  speaks  for 
itself,  the  two  most  prominent  tendencies — the  increasing 
measure  of  control  accorded  to  the  Legislature  itself,  in 
some  States,  and  the  increasingly  more  detailed  discrimina- 
tion against  urban  communities  in  others — are  really  differ- 
ent expressions  of  one  and  the  same  attitude  that  rural  legis- 
lators and  rural  delegates  to  Constitutional  Conventions 
are  beginning  to  assume.  Either  restrictions  must  not  be 
imposed  which  will  hinder  them  from  perpetuating  them- 
selves in  power;  or  restrictions  must  be  imposed  which  will 
facilitate  this  same  perpetuation.  I  speak,  of  course,  with 
some  exaggeration.  Doubtless  rural  representatives  sin- 
cerely believe  in  the  superior  virtue  and  intelligence  of  their 
own  communities.  But,  with  equal  lack  of  doubt,  the  aver- 
age urban  dweller  does  not  admit  this  claim;  and  though 
our  situation  is  immeasurably  superior  to  that  which  pre- 
vailed in  England  during  the  rotten-borough  era,  or  to  that 
which  prevails  in  the  German  Empire  and  in  Prussia  to-day, 
yet  we  are  rapidly  drifting  towards  a  state  of  affairs  in 
which  the  attempts  of  rural  communities  to  enforce  this 
claim,  against  the  preponderating  physical  and  economic 

irThe  scattered  exceptions  are  New  Hampshire,  Massachusetts,  Vir- 
ginia, Indiana  and  Wisconsin. 

z Favored  in  Iowa,  Missouri,  Kansas,  Arkansas,  and  Oklahoma;  not 
favored  in  the  States  to  the  north  and  to  the  south  of  this  contiguous 
group. 

8  Favored,  merely  in  that  each  county  must  have  at  least  one  mem- 
ber, in  Utah  and  Idaho.  Counties  in  this  section  of  the  Union  are 
very  large. 


188  TERRITORIAL  BASIS  OF  GOVERNMENT  [580 

strength  of  the  urban  population,  will  create  a  top-heavy 
political  structure.  It  is  historically  justifiable  that  urban 
communities  should  be  under-represented  to  some  extent. 
They  were  the  last  in  the  field,  so  of  course  they  must  ex- 
pect to  suffer.  But  if  the  discrimination  should  ever  be 
felt  to  have  been  carried  beyond  a  certain  reasonable  degree, 
the  danger  of  a  violent  overturn  can  no  more  be  avoided  by 
us  than  it  has  been  by  other  nations,  the  disfranchised  ma- 
jorities of  which  have  sought,  outside  of  law,  a  remedy  for 
the  law's  injustice.  The  composition  of  the  Legislature,  it 
should  be  recalled,  is  of  importance,  not  merelyj  and  not 
principally,  because  the  Legislature  is  the  seat  of  residuary 
power  under  the  Constitution.  The  composition  of  the 
Constitutional  Convention  itself  is  everywhere  either  deter- 
mined by  the  Legislature,  or  is  defined  in  terms  of  the 
Legislature's  own  districts. 

Now,  toward  the  solution  of  the  real  problem  of  repre- 
sentative distribution,  no  steps  have  been  taken.  Instead, 
the  framers  of  Constitutions  have  frittered  away  their  con- 
structive powers  in  devising  mathematically  exact  systems 
of  proportionate — or  disproportionate — local  representa- 
tion. There  may  have  been  a  time  when  strictly  proportion- 
ate local  representation  was  worth  emphasizing.  But  since 
local  boundaries  have  become,  except  as  between  country 
and  town,  purely  artificial,  and  matters  of  administrative 
convenience — since  the  representative  has  come  to  repre- 
sent his  party  rather  than  his  locality — proportionate  local 
representation  has  been  of  value  only  in  so  far  as  it  con- 
duced to  proportionate  party  representation.  And  since  it 
does  so  conduce  only  in  a  rough-and-ready  way,  attempts 
at  mathematical  accuracy  in  the  representation  of  each  little 
section  of  the  State,  have  been  so  much  ingenuity  wasted. 

Let  us  define  what  the  real  problem  is.  It  is  not  a  strictly 
accurate  proportioning  of  representation,  to  parties,  even. 


58l]       REPRESENTATION  IN  THE  LOWER  HOUSE         ^g 

In  a  discussing  body  it  is  desirable  that  as  many  as  possible 
shades  of  opinion  and  varieties  of  interest  should  be  given 
vigorous  voice.  But  as  long  as  all  matters  of  importance 
are  decided  by  the  preponderance  of  one  compact  party 
group,  it  does  not  matter  seriously  whether  its  majority 
is  twenty  or  sixty.  The  problem  before  the  rural  Framer 
is  not,  even,  whether  urban  communities,  whose  popular 
voting  weight  shall  in  the  aggregate  exceed  that  of  half  the 
State,  shall  or  shall  not  be  in  a  position  to  secure  more  than 
half  the  seats  in  Legislative  chamber  and  Constitutional 
Convention.  With  the  continued  growth  of  town,  at  the  ex- 
pense of  county,  which  is  incidental  to  our  development 
out  of  an  agricultural  into  a  manufacturing  nation,  rural 
predominance  is  doomed,  if  not  in  one  way,  then  in  another. 
His  problem  is  to  decide,  merely,  when  and  how  he  wishes 
urban  communities  to  be  thus  masters  of  their  own  political 
destinies — and  of  his;  whether  he  wishes  it  to  occur  fairly 
soon,  and  by  ordinary  Constitutional  means — or  somewhat 
later,  and  in  a  more  violent  manner;  whether  he  wishes 
complete  control  over  his  own  local  affairs  to  pass  into 
urban  hands — or  whether  he  had  better  begin  to  protect 
himself  while  he  may,  by  a  broad  system  of  local  charters. 

It  is  not  too  soon  to  begin  to  consider  this  problem  now, 
before  it  has  really  begun  to  press  for  solution.  I  repeat, 
that  it  is  difficult  to  avoid  the  language  of  exaggeration. 
There  is  not,  as  yet,  any  deep-seated  hostility  between  town 
and  country.  Rural  representatives  have  not  their  feet 
upon  the  city's  neck.  That  is  the  language  of  the  electoral 
campaign,  which  no  one  really  believes  in.  There  is  not  a 
State  in  the  Union  to-day,  outside  of  Delaware  and  the 
smaller  New  England  States,  in  which  the  party  whose 
strength  lies  chiefly  in  the  cities  is  not  liable,  on  some  issue 
in  no  way  connected  with  this,  to  find  itself  in  complete  con- 
trol of  the  political  machinery  of  the  State.  Our  parties  do 


I90  TERRITORIAL  BASIS  OF  GOVERNMENT  [582 

not  divide  on  sectional  lines,  as  yet,  and  the  bitterest  par- 
tisan animosities  are  usually  as  a  matter  of  fact  to  be  found 
dividing  inhabitants  of  the  same  city.  But  for  this  very 
reason,  the  tendency  which  my  recapitulation  shows  to  exist 
in  a  large  majority  of  the  Eastern  States,  may  well  be  pon- 
dered over  by  all  parties  now.  A  lack  of  sympathy  and 
mutual  understanding  between  country  and  town,  neces- 
sarily existing,  for  economic  reasons,  in  some  degree,  may 
well  become  intensified,  by  a  sense  of  political  grievance, 
to  the  point  where  amicable  adjustment  is  no  longer  pos- 
sible. A  little  historic  insight  will  facilitate  the  adjust- 
ment. It  is  to  be  hoped  that  nobody's  neck  will  ever  really 
be  under  anybody's  foot.  But  it  is  just  as  well  to  realize 
that  laws,  Constitutional  or  other,  cannot  run  counter  to 
underlying  economic  facts,  and  that  in  so  far  as  anybody's 
neck  will  be  underneath,  that  neck  will  not  belong  to  a 
lusty  urban  body.  A  livelier  sense  of  the  virtues  of  local 
self-government  will  be  the  natural  result  of  this  realiza- 
tion. Once  this  attitude  is  reached,  the  importance  of  the 
Legislature  as  an  organ  of  government  will  be  greatly  di- 
minished, and  it  should  be  an  easy  matter  to  devise  a  plan 
by  which  all  sections  shall  be  equitably  represented  in  the 
proposal  of  Constitutional  changes,  as  they  already  are  in 
the  popular  ratification. 

I  touch  upon  this  point  here  because  discrimination 
against  the  cities  appears  more  commonly  in  connection 
with  the  lower  house,  though  often  more  flagrantly  in  con- 
nection with  the  upper.  Further  comment  upon  the  struct- 
ure of  the  Legislature  as  a  whole  can  best  be  made  after  we 
have  seen  how  its  other  branch  is  constituted. 


CHAPTER  VIII 
DISTRICTS  OF  REPRESENTATION  IN  THE  UPPER  HOUSE 

THE  Colonial  Council,  out  of  which  the  State  Senate 
developed,  was  appointed  by  Crown,  Proprietor,  or  Royal 
Governor,  except  in  Connecticut  and  Rhode  Island,  where 
"  Assistants,"  together  with  their  presiding  officer,  the  Gov- 
ernor, were  elected  by  the  people  by  general  ticket;  and  in 
Massachusetts,  where  they  were  elected  by  joint  ballot  of 
the  Assembly  and  their  own  predecessors.  Local  represen- 
tation was  secured,  if  at  all,  only  through  a  requirement  of 
local  residence;  and  this  requirement,  again,  at  the  time  of 
the  Revolution,  rested  only  upon  custom  or  statute  every- 
where except  in  Massachusetts,  where  the  Charter  provided 
that,  out  of  28  "  Councillors  or  Assistants ",  at  least  18 
should  be  inhabitants  or  landholders  within  the  former 
colony  of  Massachusetts  Bay,  at  least  4  within  Plymouth, 
at  least  3  within  "  Maine  ",  and  at  least  I  within  the  terri- 
tory between  the  Sagadahoc  (Kennebec)  and  Nova  Scotia 
(New  Brunswick).1  This  organization,  simplified  by  the 
elimination  of  the  outgoing  Council  from  the  choosing 
body,2  continued  in  force  in  Massachusetts  until  1780;  the 
Connecticut  general-ticket  system  lasted  for  ten  years  after 
the  adoption  of  a  Constitution;  that  is,  until  1828;  and  the 
similar  Rhode  Island  body  until  1842. 

1  Mass.  Charter,  1691,  Thorpe,  p.  1879. 

'Gushing,  H.  A.,  History  of  the  Transition  from  Provincial  to  Com- 
monwealth Government  in  Massachusetts,  pp.  17,  175. 

583]  W 


TERRITORIAL  BASIS  OF  GOVERNMENT  [584 

In  tracing  the  development  in  the  other  States  it  will  be 
convenient  to  discuss  together  all  assemblages  of  local  repre- 
sentatives which  developed  out  of  the  Colonial  Council,  ir- 
respective of  whether  the  new  organ  retained  the  original 
mixture  of  executive,  legislative,  and  judicial  powers  en- 
joyed by  the  Colonial  Council,  or  whether  it  was  reduced  to 
a  purely  executive  or  to  a  purely  legislative  body.  In  all 
cases  the  problem  was  essentially  the  same:  how  to  apply 
the  consecrated  principle  of  local  representation  to  one,  or 
sometimes  to  two,  upper  houses  or  organs,  as  emphatically 
as  to  the  one  beneath,  and  yet  preserve  some  sort  of  distinc- 
tion. One  favorite  method  was  to  provide  a  longer  tenure 
of  membership,  with  or  without  the  device,  perhaps  sug- 
gested by  the  Pennsylvania  Frame  of  Government  of  1683, 
of  partial  renewal.  In  New  York  and  North  Carolina,  dif- 
fering suffrage  qualifications  were  for  a  time  required.  In 
other  cases  indirect  election,  an  altered  number  of  members 
to  the  district,  or  especially  created  districts,  were  invoked; 
and  although  of  these  three  devices  our  particular  concern 
is  with  the  last,  it  will  be  impossible  to  separate  the  three 
in  discussion. 

The  application  of  the  principle  of  periodic  reapportion- 
ment  to  the  upper  house  lagged  a  trifle.  Pennsylvania  did 
not  apply  this  principle  to  its  upper  house  until  1790,  Ken- 
tucky until  1799,  nor  Louisiana  until  1845,  although  all 
had  applied  it  from  the  beginning  to  the  lower.  In  Massa- 
chusetts there  was  a  delay  of  four  years,  between  1836  and 
1840;  Georgia  waited  from  1798  until  1868,  and  then  ap- 
plied the  principle  only  in  its  discretionary  form;  while  New 
Jersey,  Maryland  and  South  Carolina  have  never  extended 
the  principle  upward.  On  the  other  hand,  of  the  five  States 
which  do  not  apply  the  principle  to  the  lower  house,  Con- 
necticut adopted  it,  in  its  discretionary  form,  when  it  took 
up  the  locally-represented  upper  house  in  1828;  and  Ver- 


585]        REPRESENTATION  IN  THE  UPPER  HOUSE 

mont  introduced  the  rigid  form  when,  in  1835,  it  established 
its  first  Senate.  The  ten  later  instances  in  which  the  prin- 
ciple has  been  modified  are  the  same  for  both  bodies,  Con- 
necticut and  Georgia  being,  as  it  were,  the  connecting  links 
between  the  early  and  the  late  departures  from  the  prevail- 
ing ideal. 

I.   EARLY   TREATMENTS   OF  THE  UPPER   HOUSE 

We  have  in  the  first  place  a  group  of  instances  in  which 
the  principle  of  direct  local  choice  was  not  introduced. 
South  Carolina,  until  1778,  had  its  Legislative  'Council 
chosen  by  the  lower  house,  in  imitation  of  the  surviving 
Massachusetts  Charter;  instead,  however,  of  the  meagre 
local  representation  which  existed  in  this  State,  the  choice 
was  to  be  made  from  among  its  own  members.1  Georgia, 
until  1789,  went  its  neighbor  one  better:  the  choice  of  its 
Executive  Council  was  to  be  made  by  the  Assembly  from  its 
own  members,  but  the  Councillors  chosen  were  to  be  two 
from  each  county  entitled  to  full  representation.2  Mary- 
land, until  1837,  went  both  States  several  degrees  better:  it 
erected  a  college  of  electors,  separate  from  the  lower  house, 
but  composed  in  precisely  the  same  manner,  except  that  it 
was  half  the  size;  this  body  was  to  choose,  either  out  of  its 
own  membership  or  not,  fifteen  Senators,  local  representa- 
tion being  secured  by  the  requirement  that  nine  should  be 
residents  of  the  Western  and  six  of  the  Eastern  Shore.8 
Kentucky's  plan,  until  1799,  was  a  fusion  of  the  two  pre- 

1  Council  of  thirteen.    Their  seats  were  to  be  vacated,  and  filled  by 
fresh  elections.     S.  C.  Const.  1776,  2,  4  (until  1778). 

2  Their  seats  were  to  be  vacated,  but  not  filled  up.    It  voted  by  coun- 
ties ;  and  when  not  engaged  in  examining  legislation,  only  one  member 
from  each  county,  in  monthly  rotation,  was  obliged  to  attend.      Ga. 
Const.  1777,  2,  25,  27  (until  1789). 

8Md.  Const.   1776,   14,  15   (until   1837). 


TERRITORIAL  BASIS  OF  GOVERNMENT          [586 

ceding:  an  electoral  college,  an  exact  replica  of  the  lower 
house  as  regarded  numbers  and  mode  of  election,  chose  one 
Senator  from  each  county.1  Vermont  got  along  until  1836 
with  a  precise  copy  of  Connecticut's  general  ticket  system.2 

These  attempts  to  satisfy  the  people  with  local  represen- 
tation without  direct  election,  or  with  direct  election  with- 
out local  representation,  were  not  destined  to  endure,  and 
are  of  interest  chiefly  because  of  the  light  they  throw  upon 
two  characteristic  features  of  our  present  governmental 
structure.  Maryland's  electoral  college  was  of  course  the 
prototype  of  our  Federal  Presidential  machinery.  And 
the  reason  why  almost  every  State  of  the  Union  requires 
to-day  that  the  members  of  both  houses  shall  be  residents 
of  the  districts  by  which  they  are  chosen  is  undoubtedly  be- 
cause all  through  the  Colonial  period,  local  residence,  in 
connection  with  the  Council,  was  the  only  kind  of  local 
representation  that  existed.  It  was  natural  that,  after  the 
Revolution,  this  requirement  should  have  become  embodied 
in  the  fundamental  law,  should  have  continued  to  be  im- 
posed after  local  choice  of  Senators  was  accorded,  and 
should  have  been  extended  by  analogy  to  the  lower  house 
as  well,  where  there  never  has  been  any  reason  for  its  exist- 
ence. 

A  second  method  of  attack  was  to  accord  local  choice, 
without  any  regard  to  the  voting  weight  of  the  localities. 
One  obvious  device  was  to  give  each  county  one  Senator  or 

1  Or  at  least  one,  until  the  number  of  counties  should  equal  the  num- 
ber of  Senators.  This  latter  number  was  specified  as  n,  and  one  addi- 
tional for  every  four  representatives  added  to  the  existing  40.  When 
the  contemplated  equality  should  be  attained,  new  counties  were  to  be 
considered  as  parts  of  the  county  or  counties  from  which  taken.  Ky. 
Const.  1792,  i,  8-15  (until  1799). 

3  Council  of  twelve,  without  local  representation.  Vt.  Const.  1777, 
ch.  ii,  17;  1786,  1793,  ch.  ii,  10. 


587]        REPRESENTATION  IN  THE  UPPER  HOUSE 

Councillor,  and  this  scheme,  in  all  its  simplicity,  we  find  in 
operation  in  North  Carolina  until  1835 ; *  in  New  Hamp- 
shire (for  Executive  Council  only)  since  I792;2  in  New 
Jersey  throughout  its  entire  history ; 3  and  in  Rhode  Island 
(applied  to  towns  and  cities)  since  1842.*  Its  admirable 
efficacy  in  keeping  Hudson  County  and  Providence  where 
they  belong  needs  no  emphasis  of  comparative  figures. 

In  other  States  this  general  system  was  in  force,  but 
slight  concessions  were  made  to  the  one  most  populous  city 
or  county.  Georgia  gave  each  county  one  Senator  from 
1789  until  1843,  when  the  Legislature  was  required  to  es- 
tablish forty-six  pairs  of  contiguous  counties,  making,  with 
the  single  county  containing  the  largest  representative  popu- 
lation, forty-seven,  each  of  these  "  Senatorial  districts  "  to 
return  one  Senator;  any  new  county  was  to  be  annexed  to 
"  one  of  the  districts  from  which  it  was  taken  ",  so  that  the 
number  would  remain  unchanged;  this  system  lasted  until 
the  War.5  Louisiana,  until  1845,  specified  eleven  out  of 
twelve  "counties"  as  constituting  one  such  district  each; 
the  twelfth  county,  however,  was  permanently  divided  into 
three  districts,  of  which'  one  was  New  Orleans  city."  South 
Carolina,  in  1778,  specified  parishes  or  administrative  dis- 
tricts, nearly  identical  with  those  for  the  lower  house,  each 
to  return  one  Senator,  except  Charleston,  to  which  two  were 
accorded ;  a  similar  arrangement  was  made  upon  the  change 
to  specified  election  districts  in  1790,  and  to  unspecified 
counties  in  1868;  since  1895,  however,  all  counties  without 

>N.  C.  Const.  1776,  ii,  i  (until  1835). 

2  N.  H.  Const.  1792,  part  ii,  60. 

8N.  J.  Const.  1776,  3;  1844,  iv,  2. 

*R.  I.  Const.  1842,  vi,  i. 

6Ga.  Const.  1789,  i,  2;  1798,  i,  3;  Am.  1843,  i,  3  (until  the  War). 

«La.  Const.  1812,  ii,  10  (until  1845). 


196  TERRITORIAL  BASIS  OF  GOVERNMENT  [588 

exception  are  to  return  one  Senator.1  Maryland,  in  1837, 
assigned  one  Senator  to  each  county  and  to  Baltimore  city; 
in  1864,  however,  one  to  each  of  the  three,  or,  since  1901, 
to  each  of  the  four,  Baltimore  Legislative  districts.2  The 
South  Carolina  discrimination  amounts  to  comparatively 
little,  and  will  in  time  amount  to  less,  since  Charleston  is 
not  growing  so  rapidly  as  the  rest  of  the  State.  In  each 
of  the  four  Baltimore  districts,  on  the  other  hand,  an  aver- 
age of  over  25,000  votes  was  cast  for  President  in  1908,  as 
against  less  than  2,000  in  Calvert  County. 

Another  class  of  modifications  was  induced  by  a  desire 
to  provide  a  proper  basis  for  the  system  of  partial  renewal. 
Pennsylvania,  until  1790,  gave  one  Senator  to  each  county 
and  to  Philadelphia  city;  these  twelve  units  were  then 
classed,  as  regards  the  beginning  of  the  three-year  term, 
into  three  permanent  groups ;  as  new  counties  were  erected 
they  were  to  be  attached  to  adjacent  groups.3  Virginia 
established  twenty-four  permanent  groups  of  counties,  as 
districts  to  return  one  Senator  each ;  then,  on  the  basis  of  a 
four-year  term,  these  districts  were  themselves  to  be  classed 
into  four  "  divisions  "  by  lot ;  these  were  the  forerunners  of 
the  four  "  distributing  districts "  which  complicated  the 

1  In  1776  there  had  been  28  parishes  or  districts.  These  were  re- 
tained by  Const.  1778,  12,  for  the  Senate,  although  developed  by  division 
for  the  lower  house  (vide  ch.  vii,  p.  141,  supra).  Const.  1790,  i,  7,  pro- 
vided 35  election  districts  for  the  Senate,  to  44  for  the  other  chamber, 
and  the  two  largest  have  double  representation.  By  Am.  1808,  the 
lower  house  districts  are  to  be  used,  with  double  representation  only 
for  Charleston.  By  Const.  1868,  ii,  8,  similarly  for  counties.  By  Const. 
1895,  iii,  6,  one  Senator  from  each  county,  without  exception. 

2Md.  Am.  1837,  2,  3,  ii  (total  number  of  Senators  also  fixed  at  21)  ; 
Const.  1851,  iii,  2;  1864,  iii,  3;  1867,  iii,  2;  Am.  1901. 

3  Pa.  Const.  1776,  19  (until  1790). 


589]        REPRESENTATION  IN  THE  UPPER  HOUSE 

lower  house  plan  in  I83O.1  Delaware  had  a  better  idea.  To 
meet  the  needs  of  its  three-year  term,  it  provided  three  Sen- 
ators from  each  of  its  counties.  When,  in  1831,  the  quad- 
rennial term  for  President  had  long  made  three-year  terms 
seem  incongrous,  Delaware  abandoned  the  partial  renewal, 
but  retained  the  three  Senators.  Finally,  in  1897,  it  erected 
permanent  single-member  districts  for  Senators,  as  well  as 
for  Representatives,  and  on  the  same  general  plan,  but 
discriminating  even  more  severely  against  Wilmington.2 

Attempts  to  provide  for  anything  like  genuine  propor- 
tionate representation  appear  outside  of  the  periodic  States 
only  in  New  Hampshire  and  Massachusetts.  The  first 
New  Hampshire  instrument — which  also  exhibits,  very 
prettily,  the  transition  from  local  residence  to  local  choice, 
as  the  basis  of  local  representation — specified,  at  varying 
figures,  the  representation  which  each  of  its  five  counties 
should  have  in  its  Council  of  twelve.3  Then  in  1780,  New 
York  having  already  blazed  the  path,  Massachusetts  pro- 
vided that  40  "  Councillors  and  Senators  "  should  be  chosen 
by  Senatorial  districts,  to  be  formed  by  the  Legislature 
"  from  time  to  time  "  to  the  number  of  not  less  than  13, 
and  no  district  so  large  as  to  be  entitled,  on  the  basis  of 
"public  taxes  paid",  to  more  than  6  Senators;  these,  by 
joint  ballot  with  the  lower  house,  were  then  to  choose  9 
Councillors  proper,  out  of  their  own  number  so  far  as  pos- 
sible, but  deficiencies  from  the  people  at  large;  not  more 

1  Va.  Const.  1776,  Thorpe,  p.  3816  (until  1830).    Cf.  p.  162,  supra. 

2  In  1792,  a  two-thirds  majority  of  the  Legislature  was  authorized 
to  increase  the  number  of  Senators.     Since  1897  there  have  been  17 
districts,  of  which  2  are  in  Wilmington;  additional  details  precisely  as 
for  the  lower  house.     Del.  Const.  1776,  4;  1792,  ii,  3;  1831,  ii,  3;  1897, 
ii,  2.    Cf.  ch.  vii,  pp.  142,  143,  supra. 

3  Five,  two,  two,  two,  and  one.     N.  H.  Const.  1776,  Thorpe,  p.  2452 
(until  1784). 


198  TERRITORIAL  BASIS  OF  GOVERNMENT  [590 

than  two  Councillors  to  be  chosen  from  any  one  district; 
this  lasted  until  I84O.1  New  Hampshire,  in  1784,  simpli- 
fied this:  12  Senators  were  to  be  apportioned,  among  from 
5  to  10  districts;  two  of  them,  together  with  three  Repre- 
sentatives, were  to  be  chosen  by  joint  ballot  for  the  Council/ 
Finally,  since  1792,  New  Hampshire  has  required  the  for- 
mation, "  from  time  to  time  ",  of  single-member  districts, 
as  nearly  equal  as  possible,  on  the  basis  of  "  direct  taxes 
paid  ",  without  dividing  towns  and  unincorporated  places ; 
and  has  made  its  Councillors  elective  one  by  each  county.* 
Combining  the  preceding  provisions  with  those  in  force 
for  the  lower  house,  we  find  additional  support  for  the 
thesis,  already  sufficiently  established,  that  mere  territorial 
area  is  a  factor  of  great  importance  in  political  development. 
The  two  smallest  States,  Rhode  Island  and  Delaware,  are 
the  two  in  which  the  rural  districts  are  most  completely  in 
control  of  both  bodies,  under  antiquated  systems  of  repre- 
sentation. In  four  out  of  the  six  next  in  size,  they  are  simi- 
larly entrenched  in  one  of  the  two  houses — in  Connecticut 
and  Vermont,  in  the  lower — in  New  Jersey  and  Maryland, 
in  the  upper.  New  Hampshire's  system  seems,  on  the  sur- 
face, eminently  fair,  and  indeed — in  its  definition  of  Sena- 
torial districts  in  terms  of  taxes  paid — even  to  favor  the 
more  populous  sections;  the  absence  of  the  periodic  safe- 
guard, however,  is,  from  the  technical  point  of  view,  fatal. 
Massachusetts  is  the  only  one  of  these  small  States  which 

1  The  seats  of  Senators  chosen  as  Councillors  were  to  be  vacated, 
and  filled  up  by  the  peculiar  joint-ballot  process  provided  for  filling 
vacancies.  Mass.  Const.  1780,  Part  II,  ch.  i,  sec.  ii,  I,  4;  sec.  iii,  i,  4 
(until  1840). 

2N.  H.  Const.  1784,  Thorpe,  p.  2459  (until  1792). 

'Twelve  Senators  until  1877;  since  then,  twenty- four.  The  text 
requires  the  election  of  five  Councillors,  although  there  are  now  ten 
counties.  N.  H.  Const.  1792,  Part.  II,  25,  26,  27,  60;  Am.  1877.  ii,  25.  26. 


59I]        REPRESENTATION  IN  THE  UPPER  HOUSE 

accords  to  urban  communities,  under  the  periodic  system, 
proportionate  representation  in  both  houses  of  the  Legis- 
lature. Is  the  quality  of  Massachusetts'  legislative  output 
inferior  to  that  of  the  other  States  ? 

II.   PERIODIC  REAPPORTIONMENT 

The  Connecticut  Legislature  is  authorized  to  make  its 
reapportionment  at  intervals  of  ten  years,  on  the  basis  of 
population,  as  determined  by  the  Federal  Census.1  The  Ver- 
mont Legislature  is  required  to  make  one,  on  the  same  basis, 
as  determined  either  by  Federal  or  State  Census.4  Among 
the  States  where  both  houses  are  subject  to  periodical  reap- 
portionment, the  rules  as  to  the  apportioning  body  differ 
slightly  in  Missouri ; 3  as  to  time,  they  differ  at  present  only 
in  Maine ;  *  as  to  basis,  only  in  a  few  obsolete  instances  5 

1  At  the  first  session  after  the  completion  of  the  Census. 

3  The  apportionment  is  to  be  made  "  after  the  taking  of  such  census,1* 
which,  by  implication,  may  be  ordered  by  the  State  at  any  time.  The 
original  language,  self-contradictory  on  this  point,  was  cleared  up  by 
an  amendment  adopted  in  1850.  This  is  the  origin  of  the  similar  par- 
tial exception  to  the  periodic  principle  which  we  have  already  noted  in 
New  Jersey,  Maryland,  and  Arkansas.  Cf.  ch.  vii,  p.  146,  supra. 

8  In  case  of  failure  by  the  Legislature  to  act,  the  Governor,  Secretary 
of  State  and  Auditor-General  shall  do  so,  within  30  days  after  its  ad- 
journment. (Mo.  Const  1875,  iv,  7.) 

*  Representative  apportionment,  "  at  the  several  periods "  of  the 
State  enumeration,  required  to  be  taken  at  intervals  of  from  five  to 
ten  years.  Senatorial  apportionment,  at  dated  intervals  of  ten  years, 
merely. 

In  Iowa,  1846-57,  the  rule  is  obscure.  From  1857  to  1904,  the  usual 
five-year  action,  at  the  first  session  after  State  of  Federal  Census,  was 
required  for  the  upper  house;  action  at  every  regular  session  for  the 
lower. 

6  In  New  York,  prior  to  1821,  the  basis  was  the  same  in  terms 
("number  of  electors")*  hut  the  electoral  qualifications  for  the  two 
bodies  differed.  In  North  Carolina,  where  also  a  freehold  qualifica- 
tion was  required  (until  1856)  for  the  Senate  only,  'the  five-year  aver- 


200  TERRITORIAL  BASIS  OF  GOVERNMENT  [592 

and  in  North  Dakota.1  In  every  instance  in  which  the 
Legislature  has  been  merely  authorized,  and  not  positively 
required,  to  reapportion  the  lower  house  at  the  stated  inter- 
vals, it  has  the  same  discretion  in  regard  to  the  upper 
house,  and  it  has  this  discretion  for 'the  upper  house  alone 
in  Connecticut,  and,  since  1877,  m  Georgia.2  In  every  case 
where  the  Legislature  is  empowered  to  act  at  other  than 
the  stated  intervals,  the  situation  is  the  same  for  both  houses. 
Now  as  to  the  nature  of  the  Senatorial  district,  under 
either  the  rigid  or  the  discretionary  system.  The  painful 
steps  by  which,  for  the  lower  house,  the  varying  single- 
member  district  has  become  to  a  large  extent  substituted  for 
the  permanent  town  or  county  unit,  did  not  need  to  be 
taken  here.  Senates  being  an  entirely  modern  invention,  no 

age  of  public  taxes  paid,  in  place  of  "  Federal  population "  for  the 
lower  house,  was  the  basis  before  the  War.  In  Louisiana  the  basis  for 
the  upper  house  has  been  the  entire  population,  since  the  first  applica: 
tion  of  the  periodic  principle  to  this  body,  in  1845 ;  for  the  lower  house, 
the  number  of  electors  (free  white  males)  remained  the  basis  until 
1852.  In  Texas,  1868-76,  the  number  of  electors  was  the  basis  for 
the  upper  house;  no  prescribed  basis  for  the  lower.  Virginia's  sug- 
gestion, in  1850,  that  a  different  basis  might  be  adopted  for  the  two 
bodies,  will  also  be  recalled.  And  compare,  outside  the  periodic  States, 
the  population  and  tax-paying  bases  still  co-existing  in  New  Hampshire. 

1  For  the  upper  house,  "  number  of  inhabitants  entitled  to  represen- 
tation," defined  by  N.  D.  Const.  1889,  121,  as  (i)  Citizens  of  the  United 
States;  (2)  Aliens  who  have  declared  intention,  il/2  years  before  the 
election;  (3)  Civilized  Indians,  whose  tribal  relations  have  been  for 
two  years  severed.  By  an  amendment  adopted  in  *  1898  the  second  class 
was  dropped. 

No  basis  for  apportioning  members  of  the  lower  house  among  the 
districts  thus  formed.  Cf.  ch.  vii,  p.  184,  supra. 

z  In  Connecticut,  no  comprehensive  reapportionment  for  the  lower 
house;  authorized  periodic  reapportionment  for  the  upper. 

In  Georgia,  1798  till  the  War,  obligatory  periodic  reapportionment 
for  the  lower  house,  none  for  the  upper;  1868  to  1877,  authorized 
periodic  reapportionment  for  both  houses ;  since  1877,  obligatory  again 
for  the  lower,  authorized  for  the  upper. 


593]        REPRESENTATION  IN  THE  UPPER  HOUSE         2OI 

type  of  local  district  has  had  a  consecrated  right  of  repre- 
sentation in  them.  From  the  very  beginning  they  have  been 
State  organs,  rather  than  aggregations  of  local  delegates, 
and  although  the  system  of  local  choice  has  undoubtedly 
been  valued  as  incidentally  assuring  representation  to  dif- 
ferent sections  of  the  State,  the  main  problem  has  always 
been  how  best  to  organize,  for  the  election  of  the  Senate 
as  a  whole,  the  whole  body  of  State  electors.  This  differing 
attitude  towards  the  two  houses  has  showed  itself,  among 
other  ways,  in  the  differing  rules  as  to  the  total  number  of 
members.  The  original  idea  in  regard  to  the  lower  house 
was  that  each  locality  should  be  represented — at  first,  ar- 
bitrarily— later,  in  proportion  to  its  voting  weight — the 
total  of  these  representatives  constituting  the  total  size  of 
the  chamber;  it  was  only  as  it  was  realized  that  a  "  ratio  ", 
as  small  as  the  smallest  locality,  would  make  the  total  num- 
ber inconveniently  large,  that  limitations  upon  this  total 
number  were  imposed,  and  small  localities  either  combined, 
or  the  proportionate  principle  modified  to  their  advantage. 
The  Senate,  on  the  other  hand,  as  the  successor  of  the 
Council,  has  always  been  pictured  as  cpntaining  a  strictly 
limited  number  of  members,  so  that  the  periodic  process  has 
never  been  an  apportionment  of  representatives  to  the  locali- 
ties, but  always  a  distribution  of  members  throughout  the 
State.  For  this  purpose,  the  variable  district  from  the  be- 
ginning commended  itself.  Only  in  Vermont,  and  in  Mas- 
sachusetts for  a  time,  has  a  fixed  territorial  unit  clearly 
been  adopted. 

The  single-member  district,  as  the  obvious  perfection  of 
the  variable  district,  suggested  itself  at  once.  Single  dis- 
tricts for  the  choice  of  Congressional  Representatives  were 
voluntarily  formed  by  several  State  Legislatures,  imme- 
diately after  the  adoption  of  the  Federal  Constitution. 
Single  Senatorial  districts,  we  have  seen,  have  been  pre- 


202  TERRITORIAL  BASIS  OF  GOVERNMENT  [594 

scribed  since  1792  in  New  Hampshire.  Here,  however, 
another  set  of  considerations  came  into  play.  Far  the 
easiest  way  of  defining  Senatorial  districts,  on  the  basis 
of  their  enumerated  population,  was  in  terms  of  fairly  large 
units,  such  as  counties.  It  was  also  a  most  useful  check 
upon  partisan  gerrymanders  to  insist  that  they  should  be  so 
formed.  Considerations  of  symmetry,  to  some  extent  local 
feeling  as  well,  combined  with  one  or  both  of  these  more 
practical  arguments  to  inspire  the  feeling,  in  the  larger 
States,  that  counties  should  not  be  divided.  But  if  they 
were  not  to  be  divided,  even  approximately  equal  districts 
could  often  not  be  secured.  Should  proportionate  equality 
be  sacrificed  to  the  single-member  idea,  or  should  the  Legis- 
lature be  permitted  a  wider  freedom  in  the  size  and  mem- 
bership of  the  district  ?  Should  divisions  be  permitted  which 
would  make  equality  possible,  but  bring  the  risk  of  gerry- 
mander in  their  train?  Or  should  the  whole  problem  be 
given  up  as  insoluble,  and  every  thing  left  to  the  honor  of 
the  apportioning  body?  Finally,  was  the  same  rule  to  be 
prescribed  for  the  upper  as  for  the  lower  house,  or  was  a 
deliberate  effort  to  be  made  to  keep  the  two  houses  as  dis- 
similar as  possible? 

The  practical  difficulty  of  the  problem  has  resulted  in  its 
being  solved  in  many  different  ways.  Concerning  these 
solutions  it  may  in  general  be  said  that  originally  the  two 
houses,  because  of  their  differing  historical  antecedents, 
were  formed  upon  decidedly  different  lines,  and  that  it  is 
only  recently  that  they  have  become,  in  several  States,  as- 
similated to  one  another.  In  so  far,  moreover,  as  this  assim- 
ilation has  occurred,  it  has  been  usually  a  matter  of  the 
lower  house  escaping  from  the  bondage  of  traditional  ideas, 
and  assuming  upper  house  characteristics. 


595]        REPRESENTATION  IN  THE  UPPER  HOUSE         203 

i.  The  permanent  district 

This  has  appeared  clearly  in  Vermont,  where,  since  1836, 
Senators  are  apportioned  among  the  counties,  in  the  same 
manner  as  Representatives  in  several  other  States;  and  in 
Massachusetts,  where,  between  1840  and  1857,  the  then 
established  Senatoral  districts  were  utilized  as  permanent 
units.1  These  are  instances,  of  course,  of  the  lower  house 
practice  influencing  the  upper.  In  Arizona,  also,  it  would 
appear  that  the  county  is  to  remain  the  unit  for  both  houses.2 

2.  Simple  unions 

The  first  instruments  of  New  York,  Ohio,  Indiana,  Illi- 
nois and  Maine  did  not  expressly  provide  that  Senatorial  dis- 
tricts were  to  be  formed  only  by  grouping  contiguous  and 
undivided  counties  (or,  in  Maine,  towns).  Such  was  the 
undoubted  intention,  however,  and  the  technical  defect  was 
remedied  by  Pennsylvania,  in  1790,  and  by  all  other  States 
which  have  since  adopted  this  system.  It  was  a  natural  and 
common  method,  which  survives  in  nine  States  to-day, 
widely  scattered.8 

In  two  of  these  surviving  States,  Tennessee  and  Colo- 
rado, the  county  union  plan  is  provided  for  the  lower  house 
as  well.  In  the  case  of  Tennessee,  however,  we  must  be  on 
our  guard  against  assuming  that  it  means  the  same  thing  as 
applied  to  the  two  houses.  As  applied  to  the  lower  house, 
it  means  that  the  county  is  the  normal  unit,  unions  of  small 

*In  Vermont  (Am.  1836,  iv;  1850,  xxiii),  total  of  30  Senators,  at 
least  one  to  each  county,  and  remainders  represented  in  order  of  size. 

In  Massachusetts  (Am.  1840,  xiii),  total  of  40  Senators,  and  at  least 
one  to  each  district  (until  1857).  Total  of  9  Councillors,  to  be  chosen 
by  joint  ballot,  and  not  more  than  one  from  each  district  (until  1855). 

8  Under  the  provision  regarding  the  qualifications  of  members.  No 
other  restriction  of  any  sort,  for  either  house.  (*  Const.  1911,  iv,  2,  1, 2). 

8  Mame— Florida— Indiana,  Tennessee— Iowa— Colorado,  New  Mexico 
— Idaho,  Oregon. 


204  TERRITORIAL  BASIS  OF  GOVERNMENT  [596 

counties  being  formed  only  in  exceptional  cases.  As  ap- 
plied to  the  upper  house,  it  means  that  the  districts  nor- 
mally consist  of  county  groups,  which,  when  practicable,  are 
made  of  such  a  size  as  to  return  a  single  Senator;  it  is  only 
exceptionally  that  a  district  returns  more  than  one  Senator, 
or  consists  of  a  single  large  county.  In  Colorado  and  New 
Mexico,  the  two  systems  are  assimilated  in  theory,  but  the 
smaller  size  of  the  lower  house  district  makes  the  excep- 
tions more  likely  to  occur  in  practice.1 

1  Virtually  no  additional  provisions,  other  than  limitation  upon  total 
number  of  members,  appear  in: 

New* York,  1801-21  (32  Senators). 

Ohio,  1802-51  (Ys  to  l/2  number  of  Representatives). 

Indiana,  1816-51   (*/$  to  H  Reps.)  ;  since  1851   (max.  50). 

Mississippi,  1817  to  the  War  (l/3  to  */2  Reps.). 

Illinois,  1818-48  (H  to  y2  Reps.). 

Maine,  since  1819  (total  of  20,  to  be  increased  according  to  the  in- 
crease in  the -lower  house,  up  to  a  maximum  of  31). 

Missouri,  1820-65  (14  to  33). 

Texas,  1845  to  the  War  (19  to  33). 

Iowa,  1846-57  (H  to  y2  Reps.)  ;  1857-1904  (max.  50)  ;  since  1904 
(50). 

California,  1849-62  (ft  to  ]/2  Reps.). 

Florida,  1868-85  (*A  to  H  Reps.)  ;  since  1885  (max.  32). 

Virginia,  1870-76  (no  limit  as  to  number  of  Senators;  max.  40  dis- 
tricts) ;  1876-1902  (33  to  40  Senators). 

Colorado,  since  1876  (approximately  H  of  an  aggregate  ranging  from 
75  to  100). 

Idaho,  since  1889  (18  to  24). 

New  Mexico,  since  1911  (24). 

In  Maine,  the  districts  are  to  "conform,  as  near  as  may  be,  to  county 
lines."  In  Florida,  until  1885,  one  Senator  was  accorded  to  the  Sem- 
inole  Indians.  In  Virginia,  the  districts  are  formed  by  grouping  coun- 
ties, cities  and  towns.  In  Colorado  they  must  be  compact. 

The  earliest  detailed  provision  appeared  in  New  York,  in  1777.  The 
total  number,  provisionally  set  at  24,  was  to  be  increased  up  to  a  max- 
imum of  100,  under  the  same  unworkable  rule  as  was  provided  for  the 
lower  house.  In  1801  this  was  abandoned  for  the  flat  total  mentioned 
above,  without  other  restrictions.  In  practice,  the  number  of  "  Great 
Districts"  was  never  changed  from  the  number  originally  provided — 
four — although  their  boundaries  were  frequently  shifted- 


597]        REPRESENTATION  IN  THE  UPPER  HOUSE         205 

3.   Obligatory  single-member  districts,  without  divisions 

The  attempt  to  obtain  approximately  equal  districts,  re- 
Pennsylvania,  in  1790,  with  a  total  of  from  *4  to  }/?  the  number 
of  Representatives,  provided  that  no  district  should  return  more 
than  4  Senators.  In  1838  a  further  step  in  the  direction  of  the  single 
member  system  was  taken,  through  the  requirement  that  no  separate 
county  or  city  should  return  more  than  4,  no  grouped  district  more 
than  2  Senators.  This  lasted  until  1857. 

Tennessee,  in  1796,  required  from  l/3  to  ^  the  number  of  Repre- 
sentatives, and  no  district  to  return  more  than  3  Senators.  Since  1834, 
the  total  is  not  to  exceed  J/$  that  of  the  lower  house,  there  is  no 
limitation  as  to  size  of  district,  and  fractions  lost  by  counties'  in  the 
apportionment  for  the  lower  house  are  to  be  made  up  to  them  in  the 
upper,  "  as  near  as  may  be  practicable." 

In  Connecticut,  from  1828  till  1901,  from  18  to  24  Senators  were  to 
be  chosen  in  from  8  to  24  districts,  lying  wholly  within  counties,  no 
town  to  be  divided,  and  no  county  to  have  less  than  2  Senators. 

In  North  Carolina,  from  1835  till  the  War,  a  flat  total  of  50  ap- 
peared. Residuums  were  to  be  shifted  to  undersized  adjacent  coun- 
ties, in  imitation  of  the  original  Kentucky  lower  house  provision,  so 
as  to  give  these  separate  representation  if  possible. 

In  Oregon,  finally,  the  total  is  to  be  from  16  to  30,  and  approximately 
y*  the  number  of  Representatives.    As  with  the  lower  house,  fractions 
exceeding  l/2  ratio  are  to  be  represented. 
References : 

N.  Y.  Const.  1777,  10,  12;  Am.  1801  (until  1821). 

Pa.  Const.  1790,  i,  4,  6,  7;  1838,  i,  4,  6,  7  (until  1857). 

Tenn.  Const.  1796,  3,  4;  1834,  ",  6,  1870,  ii,  6. 

Ohio  Const.  1802,  i,  6  (until  1851). 

Ind.  Const.  1816,  iii,  6,  1851,  iv,  2,  5,  6. 

Miss.  Const.  1817,  iii,  10,  13;  1832,  iii,  10,  13  (until  the  War). 

111.  Const.  1818,  ii,  5,  6  (until  1848). 

Me.  Const.  1819,  iv,  Part  ii,  i,  2. 

Mo.  Const.  1820,  iii,  6  (until  1865). 

Conn.  Am.  1828,  i,  ii  (until  1901). 

N.  C.  Am.  1835,  i,  i  (until  the  War). 

Tex.  Const.  1845,  iii,  10,  31   (until  the  War). 

Iowa,  Const.  1846,  iii,  6,  31,  32;  1857,  i»,  34,  35,  37;  Am.  1904  iii,  34. 

Cal.  Const.  1849,  iv,  6,  29,  30  (until  1862). 

Oreg.  Const.  1857,  iv,  2,  3,  6,  7. 

Fla.  Const.  1868,  xiv;  1885,  vii,  2,  4. 

Va.  Const.  1870,  v,  3,  4;  Am.  1876,  v,  3,  4  (until  1902). 


206  TERRITORIAL  BASIS  OF  GOVERNMENT  [598 

turning  a  single  member  each,  and  yet  preserve  county  lines 
intact,  was  first  made  by  Kentucky  in  1799,  and  survives 
in  this  naked  form  in  Alabama  and  Georgia  to-day.1  In 
view  of  the  large  number  of  Senators  which  it  has  been 
thought  necessary  to  provide,  this  necessarily  leads  to  in- 
equality of  representation.  The  general  principle,  therefore, 
modified  by  a  permission  accorded  to  exceptional  counties 
or  districts  to  return  more  than  one  member  appears  in 
Arkansas  and  Ohio.2  New  York,  between  1821  and  1846, 

Colo.  Const.  1876,  v,  46,  49. 

Idaho  Const.  1889,  ii,  2,  5. 

N.  Mex.  Const.  1911,  iv,  3,  "Apportionment." 

1  No  additional  provision  other  than  limitation  upon  total  number  in : 

Kentucky,  1799-1850  (24  Senators,  and  one  additional  for  every 
three  Representatives  added  to  the  existing  number  of  58). 

Alabama,  since  1819  (%  to  T/s  number  of  Representatives). 

Florida,  1838— the  War  (*4  to  l/2  number  of  Representatives). 

Georgia,  since  1868  (44  Senators). 

Virginia  introduced,  in  1830,  two  distributing  "  Divisions,"  cor- 
responding to  the  four  "  Great  Districts "  for  the  lower  house.  The 
one  to  the  west  of  the  Blue  Ridge  was  to  return  13,  the  one  to  the 
east,  19  Senators,  counties,  cities,  towns  and  boroughs  being  grouped 
for  this  purpose  into  single  member  districts.  If,  by  extraordinary 
majority,  these  divisions  should  be  ignored,  a  maximum  of  36  Sena- 
tors was  set.  From  1850  till  the  War,  counties,  cities  and  towns  were 
merely  to  be  grouped  into  50  single  member  districts. 

In  Illinois,  between  1848  and  1870,  25  single  member  districts  were 
to  be  formed,  under  the  lower  house  mathematical  rule,  which  dis- 
criminated slightly  against  the  urban  districts,  and  with  the  same 
authorization  to  accord  separate  representation  to  cities  and  towns 
containing  the  requisite  population. 
References : 

Ky.  Const.  1799,  ii,  6,  u,  12  (until  1850). 

Ala.  Const.  1819,  in,  10,  n;  1867,  viii,  3;  1875,  ix,  I,  4;  1901,  197,  200. 

Va.  Const.  1830,  iii,  3-5;  1850,  iv,  3,  5,  6  (until  the  War). 

Fla.  Const.  1838,  ix,  1-3  (until  the  War). 

111.  Const.  1848,  iii,  6,  8-10  (until  1870). 

Ga.  Const.  1868,  iii,  2;  1877,  »i>  2. 

'Arkansas  started   (Const.   1836,  iv,  31-33)   with  a  requirement  of 


599]  '     REPRESENTATION  IN  THE  UPPER  HOUSE         2O? 

profiting  by  Delaware's  example,  enumerated  eight  districts, 
to  return  four  Senators  each,  of  whom  one  to  be  elected 
each  year,  on  the  partial  renewal  plan;  somewhat  similar 
arrangements  appeared  in  Michigan  for  a  time,  and  in  West 
Virginia,  to-day,  the  advantage  of  course  being  that  these 
larger  districts  can  more  easily  be  made  equal.1 

from  17  to  33  Senators,  and  not  more  than  25  until  the  State  should 
contain  a  population  of  500,000;  the  ratio,  meanwhile,  to  be  1,500  free 
white  males,  and  each  district  to  contain,  "  as  nearly  as  practicable " 
an  equal  number  of  free  whites,  with  a  special  exception  for  Wash- 
ington county.  This  did  not  survive  the  War.  It  was  revived,  how- 
ever, in  1874  in  the  following  form: — Total  number,  30  to  35;  each 
Senator  to  represent  an  equal  number  "  as  nearly  as  practicable." 
(Const.  1874,  viii,  2,  3). 

Ohio,  since  1851  (Const.  1851,  xi,  6-10)  fixes  a  ration  of  V35; 
Hamilton  county  to  be  one  district,  returning  3  Senators;  the  re- 
maining counties  to  be  grouped  into  32  single  member  districts.  The 
lower  house  rules  as  to  according  part-time  representation  on  re- 
mainders, and  annexing  districts,  containing  less  than  ^  ratio,  to 
adjacent  districts,  are  repeated;  also  as  to  separation  of  counties  from 
an  existing  district,  except  that  here  a  full  ratio  is  required  in  both 
parts.  Cf.  ch.  vii,  pp.  159,  165,  supra.  The  rule  discriminates  very 
slightly  against  Hamilton  county. 

1  By  New  York  Const.  1821,  i,  5,  6,  until  1846,  there  were  to  be  eight 
districts,  each  returning  four  Senators.  This  was  in  order  that  one 
might  be  elected  each  year,  for  a  four-year  term. 

By  Mich.  Const.  1835,  iv,  2,  6,  until  1850,  the  total  number  was  to 
be  y$  that  of  the  Representatives,  "  as  nearly  as  may  be " ;  and  there 
were  to  be  from  four  to  eight  districts,  to  elect  an  equal  number  an- 
nually, "  as  nearly  as  may  be." 

By  West  Virginia  Const.  1862,  iv,  2,  4,  5,  13,  16,  a  total  of  18 
Senators,  subject  to  increase  if  the  State  should  be  enlarged,  were  to 
be  chosen,  two  each,  on  the  partial  renewal  plan,  from  9  equal 
and  compact  groups  of  counties,  and  not  both  from  the  same  county; 
any  district  might  at  any  time  be  divided  by  county  lines  or  other- 
wise, into  full  single  member  districts.  In  1872  (Const.  1872,  vi,  2,  4, 
n)  this  last  feature  was  dropped,  and  the  figures  changed  to  24 
Senators  and  12  districts. 


208  TERRITORIAL  BASIS  OF  GOVERNMENT  [600 

4.  Obligatory  single-member  districts,  with  occasional 
divisions 

Another  solution,  devised  by  Louisiana  in  1845,  at  tne 
time  that  divisions  of  Orleans  parish  for  lower  house  pur- 
poses was  made  obligatory,  was  to  permit  this  parish  to  be 
divided  for  upper  house  purposes  also.  The  obligation  to 
form  single-member  districts  was  later  removed,  and  a 
somewhat  similar  Pennsylvania  requirement  of  single-mem- 
ber districts  only  in  Philadelphia  is  also  obsolete.  To  this 
period  belongs,  however,  the  existing  Massachusetts  provi- 
sion permitting  any  city  to  be  divided  in  the  formation  of  a 
general  single-district  system.1 

1The  total  number  in  Louisiana  before  the  War  was  32;  1868-79, 
36.  Newly  created  parishes  were  to  be  attached  to  any  contiguous 
district.  The  original  rule  was  that  Orleans  was  to  have  4  Senators, 
and  the  ratio  for  the  rest  of  the  State  to  be  obtained  by  dividing  the 
rest  of  the  population  by  the  rest  of  the  Senators — the  rule  later 
introduced  into  North  Carolina  for  the  lower  house.  No  parish  was 
to  return  more  than  four  Senators,  and  no  grouped  district  more  than 
two — the  Pennsylvania  Senatorial  rule  of  1838.  And  districts  to  re- 
turn two  Senators  were  not  to  be  formed,  if  an  enumerated  population 
within  l/s  of  a  single  full  ratio  could  be  secured.  In  1852,  Orleans 
was  given  5  Senators.  In  1868,  its  representation  was  not  fixed,  and 
the  ratio  was  to  be  obtained  by  dividing  the  entire  population  by  the 
entire  number  of  Senators.  This  ,lasted  until  1879. 

Pennsylvania,  in  1857,  amended  its  rule  of  1838  by  the  requirement 
that  Philadelphia  was  to  be  divided  into  single  member  districts,  of 
contiguous  territory,  without  dividing  wards. 

Massachusetts,  in  1855  provided  that  8  single  member  districts 
should  be  formed  for  Councillors,  without  dividing  towns  or  wards, 
and  that,  in  case  40  Senatorial  districts  should  later  be  provided, 
Councillor's  districts  should  consist  of  contiguous  groups  of  5  of 
these.  Two  years  later  these  Senatorial  districts  were  provided,  to 
be  formed  without  dividing  towns  or  wards,  and,  as  nearly  as  might 
be,  without  running  over  county  lines. 
References : 

La.  Const.  1845,  15,  16;  1852,  15,  16;  1868,  28-29  (until  1879). 

Pa.  Am.  1857,  i,  2,  4,  (until  1873). 

Mass.  Am.  1855,  xvi;  1857,  xxii 


6oi]        REPRESENTATION  IN  THE  UPPER  HOUSE         2og 

5.  Obligatory  single-member  districts,  with  divisions  of 
large  counties 

Eleven  States,  following  New  York  in  1846,  permit  coun- 
ties entitled  to  two  or  more  Senators  to  be  divided.  The 
original  intention  of  the  rule  may  have  been  to  permit  this 
only  for  the  formation  of  districts  wholly  within  the  county. 
The  rule  does  not  so  state,  however,  in  New  York  until 
1894,  in  Kentucky  until  1890,  and  to-day  in  Michigan  and 
North  Carolina,  and  it  was  not  so  interpreted  in  the  New 
York  apportionments,  for  instance,  of  1875  and  1892,  when 
parts  of  New  York  county  or  Kings  were  joined  with  ad- 
jacent counties.  The  modern  phrasings  prevent  these 
anomalies.  New  York  has  recently  made  a  very  stringent 
discrimination  against  its  largest  city.1 

1  No  additional  limitations,  other  than  that  of  total  number,  in : 

New  York,  1846-94  (32  Senators  and  districts). 

Michigan,  since  1850  (32). 

North  Carolina,  since  1868  (50). 

California,  since  1879  (40). 

North  Dakota,  since  1889  (30  to  50). 

Kentucky,  since  1850,  has  required  38  districts.  Until  1890,  the 
rule  as  to  separate  representation  of  urban  districts,  on  full  ratios, 
applied  to  both  houses.  Since  then,  the  rule  that  districts  having  the 
larger  territory  are  to  be  given  the  advantage,  in  whatever  inequality  re- 
sults from  the  enforced  recognition  of  county  lines,  is  applied  to  both 
houses.  Cf.  the  fairer  Tennessee  rule,  under  which  inequalities  are  to 
cancel  each  other,  p.  205,  supra. 

In  Missouri,  since  1865,  there  are  to  be  34  districts,  and  compact 
subdivisions  of  counties  entitled  to  more  than  one  member  are  to  be 
made  by  the  County  Court,  or,  since  1875,  by  the  Circuit  Court,  pre- 
cisely as  for  the  lower  house.  This  is  the  only  instance  of  local 
action  in  the  formation  of  Senatorial  districts. 

For  the  Illinois  rule  regarding  the  formation  of  51  districts,  vide 
ch.  vii,  p.  177,  supra. 

In  Pennsylvania,  since  1873,  50  compact  districts  are  to  be  formed 
on  a  ratio  of  1/50.  Counties  containing  l/2  to  j4  ratio,  which  adjoin 
counties  entitled  to  one  or  more  Senators,  and  all  counties  containing 
fg  to  i  ratio,  may  be  given  separate  representation.  A  separate 


210  TERRITORIAL  BASIS  OF  GOVERNMENT  [602 

In  several  of  these  States,  the  single-member  system  is 

Senator  (apparently)  must  be  given  to  all  counties  containing  i  to 
*/i  ratios,  and  separate  representation  to  larger  counties  on  the  basis 
of  one  Senator  to  every  full  ratio  and  additional  fa  but  no  county  or 
city  to  have  more  than  l/6  of  the  whole;  and  counties  not  entitled  to 
more  than  one  Senator  may  not  be  divided.  %  of  50,  in  whole  num- 
bers, in  16%;  Philadelphia  in  1910  contained  over  20%  of  the  population. 
New  York,  in  1894,  applied  the  rule  for  the  formation  of  compact 
districts,  without  dividing  towns  or  city  blocks,  and  with  border 
units  to  be  distributed  so  as  to  make  the  parts  as  nearly  equal  as 
possible,  to  the  upper  as  well  as  to  the  lower  house  (vide  ch.  vii, 
p.  172,  supra).  An  extremely  interesting  mathematical  rule  gov- 
erning the  apportionment  proper  is  also  provided.  A  fixed  ratio 
of  1/50  is  prescribed,  and  a  distinction  made  between  counties  having 
less,  or  more,  than  3  ratios.  Those  containing  less  may,  by  implica- 
tion, be  represented  on  less  than  full  ratios.  Those  containing  more 
— and  only  New  York  county,  Kings,  and  Erie  can  contain  more, 
for  many  years  to  come — may  not  be;  and  no  one  of  them  shall  ever 
have  more  than  one-third — no  two  counties,  "or  the  territory  thereof 
as  now  organized,  which  are  adjoining  counties  or  are  separated  only 
by  public  waters"  (i.  e.  New  York  and  Kings  counties)  shall  ever 
have  more  than  one-half — of  the  total  number  of  Senators.  It  is  in 
the  determination  of  what  this  total  number  shall  be,  however,  that 
language  has  been  most  skilfully  employed  to  veil  its  real  significance. 
The  total  number  is  to  be  50,  unless,  on  any  apportionment,  one  of 
the  larger  counties,  as  above  defined,  shall  be  entitled  to  an  increase, 
in  which  case  it  shall  receive  the  additional  Senator,  or  Senators,  and 
the  total  number  be  correspondingly  increased.  This  looks,  at  first 
glance,  as  though  some  concession  were  being  made  to  the  larger 
counties  here,  to  make  up  for  what  they  suffer  by  the  rest  of  the 
provision.  A  moment's  reflection  will  show,  however,  that  if,  instead 
of  this  rule,  the  total  number  of  Senators  were  fixed,  not  only 
would  the  larger  county  obtain  its  addition,  but  the  smaller  group 
must  lose  a  corresponding  number;  the  effect  of  the  rule  is  at  once 
to  keep  the  existing  number  of  rural  Senators  intact,  and  to  grant 
to  the  larger  counties  one-half  the  benefit  to  which  their  more  rapid 
growth  would  equitably  entitle  them.  New  York  and  Kings,  with 
an  actual  combined  population  (including  aliens)  of  over  48%  of 
the  State,  have  to-day  20  out  of  51  Senators.  A  little  figuring  will 
show  that  when  their  enumerated  population  is  60%  of  that  of  the 
entire  State — when  they  cast  a  majority  in  the  popular  vote  of,  say, 
half  a  million — the  positive  restriction  upon  the  number  of  their  Sena- 


603]        REPRESENTATION  IN  THE  UPPER  HOUSE         2II 

prescribed  also  for  the  lower  house,  but  differences  in  the 
manner  of  recognizing  administrative  lines  makes  the  two 
systems  identical  only  in  California  and  Kentucky.  In  Illi- 
nois and  North  Dakota  the  Senatorial  districts  are  utilized 
for  the  lower  house,  but  not  so  as  to  return  a  single  mem- 
ber.1 

6.  Free  formation  of  single-member  districts 

Of  the  preceding  single-member  States,  New  York  is 
the  only  one  to  insist  upon  harmony  between  the  lines  of 
upper  and  lower  house  districts.  Wisconsin,  in  1848,  fol- 
lowed by  Minnesota  and  Washington,  limit  the  single-mem- 

tors  will  still  not  need  to  be  invoked,  because  even  without  it,  they 
will  not  be  entitled  to  half  the  Senate. 

Connecticut,  since  1901,  requires  24  to  36  single  member  districts, 
to  lie  wholly  within  towns,  or  to  consist  of  groups  of  complete  towns 
lying  wholly  within  a  county,  and  no  county  to  have  less  than  one 
Senator. 

In  Oklahoma,  the  rule  for  border  units,  etc.,  based  upon  that  of  New 
York,  applies  to  both  houses.  The  number  of  Senators  starts  at  44, 
but,  in  further  imitation  of  New  York,  in  case  any  county  is  found 
entitled  to  3  or  more  Senators,  its  representation,  and  the  total  number 
of  Senators,  is  to  be  increased  accordingly.  Doubtless  V44  is  intended 
to  be  a  fixed  ratio,  although  not  so  stated. 
References : 

N.  Y.  Const.  1846,  iii,  2-4;  1894,  2,  4. 

Mich.  Const.  1850,  iv,  2,  4 ;  *  1908,  v,  2,  4. 

Ky.  Const.  1850,  ii,  5,  13-15;  1890,  33. 

Mo.  Const.  1865,  iv,  4-8;  1875,  iv,  5,  6,  9. 

N.  C.  Const.  1868,  ii,  3,  5 ',  1876,  ii,  3-  4- 

111.  Const.  1870,  iv,  6. 

Pa.  Const.  1873,  ii,  16,  18. 

Cal.  Const.  1879,  iv,  6. 

N.  D.  Const.  1889,  26,  29,  214. 

Conn.  Am.  1901,  xxxi. 

Okla.  Const.  1907,  v,  9. 

System  of  minority  representation  in  Illinois;  no  system  at  all  in 
North  Dakota. 


212  TERRITORIAL  BASIS  OF  GOVERNMENT  [604 

her  requirement  only  by  the  proviso  that  lower  house  dis- 
tricts are  not  to  be  divided.    Texas  has  no  limitation  at  all.1 
Wisconsin,  alone  of  these  four,  requires  the  single-mem- 
ber system  for  the  lower  house  also. 

7.  Permissive  single-member  districts,  with  the  county  check 
Groups  and  divisions,  both,  were  permissible  in  Cali- 
fornia for  a  time  after  1862,  and  to-day  in  Mississippi  and 
Utah.  Groups,  and  permissive  divisions  of  Orleans  parish, 
only,  survived  in  Louisiana,  in  1879,  the  removal  of  the 
single-member  requirement.  Montana  curiously  permits  di- 
visions but  forbids  unions  of  counties.2 

1  Wisconsin   (Const.  1848,  iv,  3,  5),  ^  to  Yz  number  of  Represen- 
tatives. 

Minnesota   (Const.  1857,  iv,  2,  23,  24),  not  more  than  one  Senator 
to  every  5,000  inhabitants. 
Texas  (Const.  1876,  iii,  2,  25,  28),  31  Senators. 
Washington  (Const.  1889,  ii,  2,  6),  ^  to  ^  number  of  Representatives. 

2  By  California,  Am.  1862,  vi,  6,  30,  (until  1879),  the  total  number  was 
Yz  to  y*  that  of  Representatives,  and  any  county  might  be  divided  to 
form  single  member  districts. 

By  Louisiana  Const.  1879,  17,  1898,  19,  the  total  number  of  dis- 
tricts— first,  24  to  36 — then  36  to  41 — are  to  be  formed  of  complete 
parishes,  except  in  the  case  of  Orleans.  There  is  not  even  any  re- 
quirement that  the  parishes  shall  be  contiguous. 

Montana  (Const.  1889,  v,  3,  4;  vi,  2,  4)  does  not  limit  the  number, 
requiring  merely  that  new  counties  are  to  be  entitled  to  one  Senator, 
and  that  a  Senatorial  district  shall  not  consist  of  more  than  one 
county.  That  it  need  not  consist  of  an  entire  county  is  clear  from 
the  use,  elsewhere,  of  the  words  "  county  or  district." 

Mississippi  (Const.  1890,  35,  42,  255,  256)  makes  the  total  number 
30  to  45,  apparently  to  be  equally  divided  among  the  three  lower  house 
distributing  districts.  There  are  no  other  restrictions,  and  the  ac- 
companying provisional  apportionment  shows  that  flotorials  (very  rare 
for  the  upper  house)  are  here  permissible. 

In  Utah  (Const.  1895,  ix,  4)  the  total  number  of  Senators  is  to  be 
18  to  30,  and  l/$  to  l/2  that  of  the  Representatives.  Counties  are  to  be 
divided  only  to  contain  districts  wholly  within  them. 


605]        REPRESENTATION  IN  THE  UPPER  HOUSE         213 

8.  Unrestricted  formation  of  districts 
Since  Nevada  showed  the  way  in  1864,  no  direct  terri- 
torial restrictions  have  been  provided  for  either  house  in 
this  State,  Nebraska,  South  Dakota  and  Virginia.  And 
no  restrictions  upon  the  formation  of  upper  house  districts, 
only,  appear,  in  surviving  instances,  in  Kansas  and  Wy- 
oming.1 

III.    SUMMARY 

The  relative  frequency  of  the  single-member  requirement, 
applied  to  twenty-two  Senates  to-day,  as  against;  strictly 
speaking,  only  seven  lower  houses,  is  to  be  ascribed,  in  part, 
as  already  pointed  out,  to  the  absence  of  historical  tradition 
standing  in  the  way,  and  in  part  simply  to  the  smaller  num- 
ber of  Senators.  The  association  of  the  representative  with 
a  single  district  was  made  most  easily,  and  most  promptly, 
in  the  case  of  Congressmen,  where  only  a  few  broad  dis- 
tricts were  needed;  next,  for  the  Senate,  at  a  period  when 
the  number  of  Senators  was  smaller,  the  distribution  of  popu- 
lation more  equal,  than  now,  and  approximately  equal  dis- 
tricts could  thus  be  formed  without  division  of  the  more 
populous  centers;  last  of  all,  it  was  sought  in  a  few  States 
to  apply  the  idea  to  the  lower  house,  to  which  end  divisions 

1  Kansas  (Const.  1859,  ii,  *2;  x,  1-3)  maximum  of  33;  (Am.  1873, 
ii,  2)  maximum  of  40. 

Nevada  (Const.  1864,  iv,  4,  5;  xv,  6,  13)  */3  to  l/2  number  of  Rep- 
resentatives, with  aggregate  maximum  of  75. 

Nebraska  (Const.  1866,  ii,  3,  5,  8)  13  to  25;  (Const.  1875,  iii,  2,  3) 
30  to  33. 

Texas  (Const.  1868,  iii,  12,  34— until  1876)  19  to  30. 

Mississippi  (Const.  1868,  iv,  4,  35— until  1890)  %  to  H  number  of 
Representatives. 

Arkansas  (Const.  1868,  v,  7-9— until  1874)  26  Senators. 

South  Dakota  (Const.  1889,  iii,  2,  5)  25  to  45. 

Wyoming  (Const.  1889,  iii,  2,  3,  "App.",  2)  Yz  to  54  number  of  Rep- 
resentatives. 

Virginia  (Const.  1902,  41,  43)  33  to  40. 


214  TERRITORIAL  BASIS  OF  GOVERNMENT  [606 

of  counties  were  indispensable.  Since  then,  as  the  size  of 
the  Senate  has  increased,  and  the  size  of  the  districts  cor- 
respondingly diminished,  divisions  of  counties  have  been 
in  greater  or  less  degree  permitted  for  this  body  also,  in 
many  States ;  in  others,  another  way  out  of  the  difficulty  has 
been  sought,  or  the  proportionate  ideal  has  been  sacrificed ; 
while,  in  a  few,  administrative  lines  have  been  ignored  al- 
together. 

This  last  solution  may  be  discarded  at  once,  as  afford- 
ing the  apportioning  body  altogether  too  much  scope  for 
the  display  of  partisan  spirit.  Of  the  others,  none  are  fitted 
to  secure  satisfactory  results.  The  difficulty  is  not  with  the 
single-member  system,  which  is  an  admirable  conception  in 
itself.  It  is  good  that  districts  should  be  approximately 
equal,  to  the  end  that  unrepresented  minorities — the  de- 
feated parties  in  the  popular  campaign — may  everywhere 
be  about  the  same  in  size.  It  is  good  that  each  of  these  dis- 
tricts should  return  only  one  member,  upon  whom  local 
attention  may  be  focussed.  The  trouble  is  with  the  number 
of  districts  which,  under  present  conditions,  must  be  formed 
in  a  territory  already  permanently  divided  into  counties. 
The  smaller  the  Senatorial  district,  the  harder  the  task  of 
packing  counties  into  it.  The  obvious  remedy  is  a  great  de- 
crease in  the  number  of  Senators,  say  to  ten  or  twelve,  in  the 
formation  of  whose  great  districts  urban  lines,  as  having 
a  genuine  local  significance,  shall  be  recognized  first  of  all ; 
county  lines  secondarily,  merely  as  a  conventional  check 
upon  gerrymander. 

Turning  now  to  the  structural  distinctions  between  the 
two  houses,  it  will  be  observed  that  here,  too,  there  is  almost 
no  agreement  among  the  States.  The  Senate  is  always 
smaller  in  size  than  the  lower  body,  or,  better  expressed, 
the  lower  house  is  always  larger.  Incidental  allusion  has 
been  made  to  the  devics  of  a  longer  Senatorial  term,  with 


607]        REPRESENTATION  IN  THE  UPPER  HOUSE         215 

or  without  a  system  of  partial  renewal;  this  distinction  is 
common,  though  not  universal.  As  regards  definition  of 
district,  and  numerical  representation  of  the  district  when 
formed,  the  system  in  a  few  States  is  the  same  for  both 
houses;  in  most,  either  through  historical  accident  or  de- 
sign, it  is  not;  and  in  some  cases  this  difference  of  system 
results  in  the  urban  districts  being  accorded  proportionately 
equal  representation  in  one  of  the  two  houses,  but  not  in 
the  other. 

The  elevation  of  this  latter  distinction  into  a  deliberate 
structural  principle  is  an  insidiously  tempting  idea.  Urban 
house  checking  rural  house,  and  through  this  nice  balance 
of  conflicting  interests — "  because  of  the  necessary  move- 
ment of  things  " — just  and  wise  action  being  somehow 
taken  by  both,  is  Montesquieu's  theory  of  government  ex- 
pressed in  modern  terms;  and,  from  the  point  of  view  of 
urban  communities,  would  be,  at  worst,  a  bad  means  to  a 
thoroughly  desirable  end.  Just  as  surely  as  deadlocks,  once 
broken,  can  never  be  renewed — just  as  surely  as  British 
Crown  and  Lords  have  become  hopelessly  subordinate  to 
the  Commons — just  so  surely,  after  an  intervening  period 
of  friction,  more  or  less  severe,  the  rural  house  would  find 
itself  at  the  mercy  of  that  house  in  which  the  real  power 
of  the  community  resides,  or — as  appears  far  more  likely — 
both  houses  alike  would  be  overwhelmed  by  the  rising  tide 
of  Initiative  and  Referendum.  This  latter  movement  is 
only  one  of  many  indications  that  the  institution  of  two 
Legislative  chambers,  with  equal  and  coordinate  powers, 
has  ceased  to  rest  upon  a  firm  basis  of  popular  affection  and 
respect;  if  it  is  to  endure,  it  must  be  reformed.  But  it  must 
be  reformed  on  lines  which  will  enable  the  popular  ma- 
jority, upon  its  sober  second  thought,  to  secure  anything 
and  everything  it  wants.  On  no  principle  less  extreme  than 
this  can  a  lasting  system  of  government  be  founded.  We 


2i6  TERRITORIAL  BASIS  OF  GOVERNMENT  [608 

may,  of  course,  regard  the  bi-cameral  Legislature  as  an  in- 
stitution that  has  outlived  its  usefulness.  If  that  be  the 
case,  there  is  no  need  to  spend  much  thought  upon  its  com- 
position. It  does  not  work  so  badly  but  that,  with  a  little 
patching  here  and  there,  it  w;ll  carry  us  through  until  supei> 
seded  by  an  entirely  new  system.  But  if  it  seems  worth  pre- 
serving, it  must  be  made  as  responsive  to  the  general  popu- 
lar will  as  the  substitute  offered.  That  substitute  at  present 
appears  to  be  direct  popular  government,  so-called;  and 
although  this  is  a  misleading  term,  since  the  people  can 
never  act  except  upon  propositions  placed  before  them,  it 
will  be  noted  that  the  upbuilding  of  organizations,  tempor- 
ary or  permanent,  by  which  Initiative  petitions  can  be 
framed,  is  in  the  nature  of  things  more  easy  in  urban  than 
in  rural  communities.  We  do  not  need  to  depend,  then, 
upon  generalities  to  support  the  proposition  that  cities,  as 
they  increase  in  strength,  will  infallibly,  in  one  way  or  an- 
other, control  the  State.  We  can  point  out  the  particular 
way  in  which  this  is  likely  to  occur,  in  case  rural  Legis- 
lators do  not  recede  from  their  entrenched  positions. 

Once  let  it  be  admitted  that  the  true  interests  of  all  sec- 
tions will  be  best  preserved  by  according  to  cities  their  full 
proportionate  representation  in  Legislatures  and  Constitu- 
tional Conventions,  it  is  difficult  to  see  why  any  distinction 
other  than  that  of  terms  of  service  should  be  made  in  the 
structure  of  the  two  houses.  Restore  the  dignity  of  each 
house  by  reducing  the  total  membership  of  each  to  a  point 
where  election  by  one's  fellow  citizens  becomes  a  signal 
honor.  Define  a  single  set  of  great  districts  by  lines  that 
coincide,  so  far  as  this  may  be  done,  with  genuine  economic 
distinctions.  Give  the  one  house  a  short  term,  fitting  it  to 
reflect  the  passing  popular  mood,  which  is  often  mistaken  in 
the  concrete  action  it  demands,  but  always  worth  consider- 
ing as  evidence  that  some  action  is  needed.  Give  the  other 


609]        REPRESENTATION  IN  THE  UPPER  HOUSE         217 

a  long  term  of  service — rather  longer  than  at  present — par- 
tially renewed  at  intervals  not  too  long,  fitting  it  to  delay 
and  to  revise,  but  not  permanently  to  block,  action  which  is 
insistently  demanded.  And  protect  minorities,  wherever 
their  local  interests  can  be  divided  from  those  of  the  com- 
munity at  large,  by  broad  charters  of  self-government. 
Even  if  direct  popular  government,  so-called,  comes  to  be 
applied  to  the  most  important  issues  in  the  State,  the  busi- 
ness of  government  is  increasing  at  such  a  rate  that  there 
will  always  be  plenty  left  to  do  for  a  bi-cameral  Legislature 
that  is  fitted  to  do  it. 


CHAPTER  IX 

MISCELLANEOUS  DISTRICTS  OF  REPRESENTATION 
I.  CONGRESSIONAL  DISTRICTS 

BY  Article  I,  Section  4,  of  the  Federal  Constitution,  "  The 
times,  places  and  manner  of  holding  elections  for  senators 
and  representatives  shall  be  prescribed  in  each  State  by  the 
Legislature  thereof;  but  the  Congress  may  at  any  time,  by 
law,  make  or  alter  such  regulations,  except  as  to  the  place 
of  choosing  senators." 

Whether  under  this  provision  the  State  Constitution  has 
any  jurisdiction  at  all  over  Congressional  elections  is  not 
clear;  and  the  authority  of  Congress  itself  to  determine  such 
a  fundamental  point  as  the  nature  of  Congressional  districts 
is  by  no  means  free  from  question.  If  Congress  may  pro- 
vide for  a  system  of  single-member  districts,  in  general 
terms,  why  may  it  not  define  these  districts  outright,  and 
distribute  the  State  representation  arbitrarily  among  them? 
If  Congress,  without  power  to  determine  suffrage  qualifi- 
cations, may  require  that  these  districts  shall  be  equal  in 
population,  why  may  it  not  provide  that  they  shall  be  equal 
in  amount  of  taxable  property,  or  of  taxes  paid  to  the  Fed- 
eral government?  However  this  may  be,  eleven  States, 
beginning  with  Virginia  in  1830,  have  at  one  time  or  an- 
other professed  to  impose  Constitutional  restrictions  upon 
their  Legislatures  in  the  formation  of  Congressional  dis- 
tricts; and  although  Congress  has  never  passed  any  per- 
manent law  upon  the  subject,  it  has  since  1842  regularly 
218  [610 


6ii]  MISCELLANEOUS  REPRESENTATION  2ig 

supplemented  its  apportionment  acts  by  single-member  pro- 
visions. 

The  original  Virginia  provision,  in  force  until  1850,  re- 
quired merely  the  apportionment  of  Congressmen  among 
the  counties,  cities,  boroughs  and  towns,  as  nearly  as  might 
be  according  to  their  Federal  population.  Its  effect  was 
thus  merely  to  prevent  divisions  of  administrative  districts, 
although  after  1842  it  must  be  read  in  the  light  of  Con- 
gress's own  action.1 

The  Federal  apportionment  act  of  i842,2  crystallizing  a 
practice  that  had  been  common,  though  not  universal,  since 
the  beginning,  imposed  merely  the  single-member  system, 
in  general  terms.  The  act  said  nothing  about  equality 
among  the  districts.  Subsequent  acts,  of  which  that  of 
1882  3  may  be  taken  as  an  example,  go  more  into  detail, 
and  introduce  important  modifications.  Here  the  districts, 
if  newly  formed,  must  contain  "  as  nearly  as  practicable  an 
equal  number  of  inhabitants  " ;  existing  districts  may  be  re- 
tained, however,  and  additional  members,  if  any,  elected  at 
large;  or,  where  the  representation  is  decreased,  the  whole 
number  may  be  elected  at  large— under  a  strict  reading  of 
the  text,  indeed,  must  be  elected  at  large,  if  the  Legislature 
does  not  act  before  the  next  election.  This  change  in  the 
Federal  practice  explains  some  of  the  diversities  in  the 
State  provisions,  while  in  oiher  cases  the  influence  of  pro- 
visions affecting  the  structure  of  the  Legislature  will  be  dis- 
cerned. 

Counties  not  to  be  divided. 
This  requirement  has  been  imposed  by  Iowa  from  the 

iVa.  Const.  1830,  iii,  6  (until  1850). 

2  U.  S.  La\vs,  June  25,  1842. 

s  U.  S.  Laws,  February  25,  1882. 


220  TERRITORIAL  BASIS  OF  GOVERNMENT  [612 

beginning,  by  California  until  1862,  and  by  South  Carolina, 
less  clearly,  since  1895.  * 

Counties,  cities  and  towns  not  to  be  divided;  single- 

member  districts,  equal  and  compact. 
So  in  Virginia,  from  1850  till  igo2.2 

Counties,  grouped  counties,  or  subdivisions  of  counties. 
So  in  California,  from  1862  till 


Single-member  districts,  equal. 
So  in  Alabama,  from  1867  till  1875.  4 

Districts  not  to  be  changed. 
So  in  Arkansas,  from  1868  till  i874.5 

State  to  be  districted  after  each  Congressional  appor- 

tionment. 

So  in  three  Far  Western  States,  which  entered  the  Union 
with  only  one  representative  each.6 

1  In  Iowa  and  California  the  counties  must  be  contiguous. 
Iowa  Const.  1846,  iii,  32;  1857,  iii,  37. 

Cal.  Const.  1849,  iv,  30  (until  1862). 
S.  C.  Const.  1895,  vii,  13. 

2  Equal,  as  nearly  as  may  be,  in  Federal  population,  before  the  War  ; 
in  population,  afterwards.    Va.  Const.  1850,  iv,  13,  14;  1870,  v,  12,  13 
(until  1902). 

3  Cal.  Am.   1862,  iv,  30   (until  1879). 

4  Ala.  Const.  1867,  viii,  6  (until  1875). 

5  The  first  Legislature  might,  however,  redistrict.    Ark.  Const.  1868, 
xiv,  i  (until  1874). 

6  The  Colorado  practice  is  not  to  interpret  this  as  equivalent  to  a 
requirement  of  single-member  districts. 

Colo.  Const.  1876,  v,  44. 
Wyom.  Const.  1889,  iii,  "App."  i. 
Utah  Const.  1895,  ix,  i. 


613]  MISCELLANEOUS  REPRESENTATION  22l 

Unions  of  lower  house  districts. 

California,  in  1879,  made  a  valiant  effort  to  harmonize 
its  three  sets  of  variable  districts.  40  Senatorial  and  80 
lower  house  single-member  districts  are  provided,  each  to 
consist  of  counties,  grouped  counties,  or  subdivisions  of  a 
county;  and  although  it  was  not  expressly  required  that 
each  Senatorial  district  should  comprise  two  for  the  lower 
house,  it  was  obviously  hoped  that  such  might  usually 
prove  a  practicable  arrangement.  The  Congressional  dis- 
tricts, however,  are  positively  required  to  consist  of  com- 
pact groups  of  lower  house  districts,  and  county  lines  are  in 
general  to  be  rigidly  observed ;  but  after  districts  have  been 
formed  within  the  larger  counties  upon  full  ratios,  then  the 
residue  of  the  county  may  be  attached  to  adjacent  counties; 
in  plain  English,  San  Francisco  and  Los  Angeles  county 
are  to  have  as  many  districts  as  can  be  formed  within  them, 
but  the  surplus  population  is  not  to  be  deprived  of  its  claim 
to  representation.  So  long  as  California's  total  represen- 
tation in  Congress  is  8  (as  now)  or  10,  this  is  a  very  pretty 
system;  when  uneven  figures  come  in,  then  of  course  it 
breaks  down,  so  far  as  the  proportionate  system  is  con- 
cerned, unless  Congress  permits  additional  members  to  be 
elected  at  large;  the  provision  itself  does  not  require  fresh 
districting  after  each  apportionment.1 

Single-member  districts,  equal  and  compact. 
This  is  the  provision  finally  adopted  by  Virginia.2 
Besides  the  seven  widely-scattered  States  in  which  these 
varying  restrictions  upon  the  Legislature  survive,  the  two 
Dakotas  provided  that,   until  otherwise  provided  by  law, 

1  Cal.  Const.  1879,  iv,  27. 

3 "  As  nearly  as  practicable  an  equal  number  of  inhabitants."     Va. 
Const.  1902,  iv,  55. 


222  TERRITORIAL  BASIS  OF  GOVERNMENT  [614 

Congressmen  shall  be  elected  at  large;  a  provision  appar- 
ently superfluous  when  these  States  entered  the  Union  with 
only  a  single  Representative,  but  serving  the  purpose  now 
of  perpetuating  the  general  ticket  system,  in  default  of 
Legislative  action  to  the  contrary.  These  are  now  the  only 
States  in  which  Congressional  districts,  based  upon  either 
an  old  or  a  new  apportionment,  might  exist  but  actually  do 
not.1 

2.   JUDICIAL  DISTRICTS  OF  REPRESENTATION 

In  seven  States,  including  one  obsolete  instance,  dis- 
tricts of  territorial  representation  in  the  highest  Court,  not 
corresponding  to  any  obligatory  division  of  judicial  powers 
or  duties  within  these  lines,  have  come  into  existence. 
While  occasionally,  as  we  shall  see,  this  system  of  district- 
ing was  preceded  by  one  in  which  the  districts  served  a 
double  purpose,  a  deliberate  attempt  was  finally  made  in  all 
these  States  to  pattern  their  Courts  somewhat  after  the 
Legislative  model — to  introduce  local  representation  for  its 
own  sake,  that  is  to  say,  into  an  organ  possessing  State-wide 
jurisdiction.  This  little  group  of  States,  for  the  most  part 
lying  on  or  near  the  Mississippi  river,  includes  all  where  dis- 
tricts, additional  to  those  already  discussed,  have  served,  so 
far  as  the  instrument  provides,  a  purely  representative  pur- 
pose. Provisions  affecting  the  formation  of  districts  like 
those  of  the  New  York  Supreme  Court,  for  instance,  where 
the  territorial  lines  affect  not  only  the  choice  of  Judges,  but 
also  their  individual  powers  or  duties  after  they  are  chosen  2 
— or  like  the  Maryland  Circuits,  which  are  now  utilized  also 

*N.  D.  Const.  1889,  214. 
S.  D.  Const.  1889,  xix,  i. 

a  In  this  case,  the  requirement  that  they  shall  reside  within  the  dis- 
trict— not  to  be  confused  with  a  residential  qualification  for  election. 


615]  MISCELLANEOUS  REPRESENTATION 

as  the  basis  of  the  Court  of  Appeals — have  already  been  dis- 
cussed under  the  general  head  of  Major  Judicial  Districts.1 

The  movement,  if  it  may  be  dignified  by  this  name, 
started  in  Mississippi  in  1832,  in  connection  with  an  early 
introduction  of  the  as  yet  uncommon  principle  of  direct 
popular  election  of  Judges.  Given  the  determination  to 
have  a  Court  of  three  elected  Judges,  it  was  a  very  natural 
development  that  the  Legislature  should  be  required  to 
divide  the  State  into  three  districts,  each  to  return  one 
Judge;  and  the  similarity  of  this  small  body  to  the  typical 
Senate  was  still  further  enhanced  by  applying  the  principle 
of  partial  renewal.  Maryland  and  Louisiana,  twenty  years 
later,  when  the  extreme  democratic  wave  was  at  its  height, 
adopted  the  same  system,  except  that  in  Maryland  there 
were  four  specified  districts,  of  which  Baltimore  city  was 
one,  and  no  provision  for  partial  renewal;  in  Louisiana, 
four  Judges  and  districts,  and  an  additional  Chief  Justice 
elected  by  the  State  at  large. 

Such  was  the  situation  in  these  three  States  before  the 
War.  Then  a  curious  development  took  place,  illustrating 
the  tenacity  of  old  customs.  Maryland,  in  1864,  substi- 
tuted election  by  the  State  at  large,  but  required  the  Judges 
to  be  chosen,  one  each,  from  the  districts,  of  which,  Balti- 
more being  divided  by  wards,  five  were  now  defined;  three 
years  later  this  was  abandoned  for  a  system  by  which  Cir- 
cuits and  Circuit  Judges  were  utilized.  The  other  two 
States,  in  their  Reconstruction  instruments,  reverted  to  ap- 
pointive Judges,  in  the  same  number  as  before,  but  here 
also  Mississippi  has  always  made  the  proviso,  which  Louisi- 
ana also  in  1879,  imposed,  that  the  Judges  shall  be  appointed 
from  separate  territorial  divisions.  In  Mississippi  there 
has  been  no  further  change,  and  the  system  is  simple  and 

1  Vide  ch.  v,  sec.  iii,  pp.  105  et  seq.,  supra. 


224  TERRITORIAL  BASIS  OF  GOVERNMENT  [616 

symmetrical ;  the  Legislature  is  apparently  free  to  change  or 
to  leave  untouched  the  three  districts.  The  Louisiana  in- 
struments, however,  have  defined  the  districts,  in  terms  of 
parishes,  and,  in  place  of  an  additional  Chief  Justice  to  be 
chosen  from  the  State  at  large,  have  required  two  Judges 
to  be  chosen  from  the  district  in  which  New  Orleans  is  in- 
cluded; finally,  in  1904,  the  elective  system  was  revived 
upon  this  basis ;  the  partial  renewal  system,  also,  has  gradu- 
ally lost  its  original  symmetry,  until  now  elections  for  a  full 
term  occur  at  the  Congressional  election  following  any 
vacancy.1 

Meanwhile  another  pair  of  States,  Illinois  and  Kentucky, 
showed  a  tendency  to  economize  districts,  in  contrasting 
manners.  Illinois  in  1848  provided  for  three  "Grand  Divi- 
sions "  by  a  method  already  described,  within  each  of  which 
the  Court  must  hold  one  annual  term;  provisionally,  also, 
the  Judges  were  to  be  elected  within  these,  but  the  Legis- 
lature might  substitute  election  by  general  ticket ;  this  being, 
in  other  States,  the  favorite  method.  Kentucky,  two  years 
later,  did  just  the  reverse  of  this :  districts  of  election  and  of 
partial  renewal  were  prescribed;  the  number  of  Judges, 
originally  four,  might  be  reduced  to  three  and  (probably) 
increased  at  will,  in  which  case  the  districts  were  to  be 
changed,  presumably  under  the  original  restrictions.  These 
restrictions  were  that  the  districts  should  consist  of  com- 
plete counties,  and  be  equal  in  voting  population.  The 
Legislature  then,  it  was  provided,  might  or  might  not  re- 
quire that  the  Court  should  hold  its  sessions  in  one  or  more 
of  these  districts. 

The  distinction  between  the  two  States,  as  regards  place 
of  sessions,  has  endured.  Illinois  still  has  its  "  Grand  Divi- 

1  Miss.  Const.  1832,  iv,  2 ;  1868,  vi,  2 ;  1890,  145. 
Md.  Const.  1851,  iv,  4;  1864,  iv,  17  (until  1867). 
La.  Const.  1852,  64  (until  the  War)  ;  1879,  83;  1808,  87;  Am.  1904,  87. 


6 1 7]  MISCELLANEOUS  REPRESENTATION 

sions  ",  while  the  Kentucky  Court,  except  in  emergency,  sits 
at  the  capital.  In  both  States,  however,  districts  of  election 
now  appear,  in  connection  with  a  haphazard  system  of  judi- 
cial tenure.  In  Illinois,  since  1870,  there  are  to  be  seven 
Judges,  each  elected  by  a  district,  the  boundaries  of  which 
may  be  changed  only  at  a  Legislative  session  next  preced- 
ing an  election,  and  subject  to  the  restriction  that  districts 
must  be  compact,  and  as  nearly  equal  in  population  as  pos- 
sible without  dividing  counties.  In  Kentucky  there  are  to 
be  from  five  to  seven  districts,  according  to  the  number  of 
Judges;  these  districts  may  be  changed  every  ten  years,  or 
whenever  the  number  of  Judges  is  changed ;  the  rule  for  the 
original  formation  of  these  districts,  which  is  presumably  in- 
tended to  apply  permanently,  is  the  same  as  in  Illinois.1 

Finally,  Indiana,  since  1851,  followed  by  South  Dakota 
and  Oklahoma,  provide  for  the  election  of  Judges  by  the 
people  at  large;  each  Judge  to  be  chosen  however  (as  in 
Misissippi,  under  the  appointive  plan)  from  a  separate  dis- 
trict. In  Indiana  five  to  seven  districts  are  to  be  formed 
of  contiguous  territory  and  of  equal  population,  without 
dividing  counties,  but  no  provision  is  made  as  to  times  of 
redistricting.  South  Dakota  requires  merely  from  three  to 
five  districts.  Oklahoma  has  no  restriction.2 

Similar  to  the  above  are  provisions  in  Ohio  and  Louisi- 
ana for  the  election  of  lower  Judges.  The  Ohio  Common 
Pleas  districts,  themselves  to  consist  of  three  or  more  coun- 
ties, are  to  be  subdivided,  for  purposes  of  election,  in  the 
first  instance,  into  three  parts,  compact,  as  nearly  equal  in 
population  as  practicable  without  dividing  counties ;  in  each 

1  111.  Const.  1848,  v,  3 ;  1870,  vi,  5- 
Ky.  Const.  1850,  iv,  4;  1890,  113,  116. 
2Ind.  Const.  1851,  vii,  2,  3. 
S.  D.  Const.  1889,  v,  6,  u. 
Okla.  Const.  1907,  vii,  3,  22, 


226  TERRITORIAL  BASIS  OF  GOVERNMENT  [618 

of  which  one  Judge  is  to  be  elected ;  changes  in  the  subdi- 
visions, as  in  the  districts  themselves,  are  to  be  made  by  a 
two-thirds  majority  of  the  Legislature,  under  a  grant  of 
power  apparently  broad  enough  to  sweep  away  the  entire 
system.1  Louisiana  has  also  provisionally  divided  its  two 
recent  rural  circuits  into  three  districts  each,  for  the  purpose 
of  electing  partially  renewed  Courts  of  three  Judges.2 

3.  GUBERNATORIAL  DISTRICTS   OF  REPRESENTATION 

Maryland's  Governor,  uni.il  1837,  as  originally  in  all  the 
Southern  States,  was  chosen  by  joint  ballot  of  the  two 
houses.  The  strongly-marked  geographical  features  of  the 
State,  which  we  have  seen  reflected  in  the  requirement  that 
the  Western  and  Eastern  Shores  should  have  distinct  ses- 
sions of  the  highest  Court,  distinct  Treasurers  and  Regis- 
ters of  the  Land  office,  and  distinct  groups  of  Senators 
under  a  system  of  indirect  election,  would  naturally  make 
the  Governor's  place  of  residence  a  matter  of  more  signifi- 
cance than  in  other  States.  This  led  to  the  Constitutional 
requirement,  between  1837  and  1864,  that  the  Governor 
should  be  chosen,  by  vote  of  the  entire  State,  for  a  term  of 
three,  or  later  four  years,  from  each  of  three  specified  dis- 
tricts, in  rotation.3 

4.  ADMINISTRATIVE  DISTRICTS  OF  REPRESENTATION 

Virginia  and  Louisiana,  in  the  last  decade  before  the 
War,  provided  for  Boards  of  Public  Works,  which,  unless 
abolished  by  three-fifths  vote  of  the  Legislature,  were  to 

1  Ohio  Const.  1851,  iv,  3,  15. 

2  La.  Am.  1906,  100. 

'The  Eastern  Shore  was  one  district;  Baltimore  city  was  grouped 
with  the  southern  counties,  and  Baltimore  county  with  the  north- 
western. Md.  Am.  1837,  20;  Const.  1851,  ii,  5  (until  1864). 

Cf.  also  the  use  made  by  Mississippi,  since  1890  (Const.  140)  of  its 
lower  house  districts  in  the  gubernatorial  election. 


619]     .        MISCELLANEOUS  REPRESENTATION 

consist  of  three,  or  in  Louisiana  of  four,  Commissioners,  to 
be  elected  on  the  partial  renewal  plan,  in  districts  to  be 
formed  so  as  to  contain,  as  nearly  as  might  be,  an  equal 
number  of  voters.1  These  did  not  survive  the  War.  Since 
then,  however,  the  instruments  of  Louisiana,  and  of  three 
other  States,  have  applied  the  principle  of  territorial  repre- 
sentation to  various  types  of  Boards.  At  first,  electoral  dis- 
tricts were  prescribed,  but,  as  in  some  judicial  examples,  al- 
ready noted,  the  principle  of  district  representation  has  sur- 
vived a  centralization  of  the  selecting  authority. 

(a)  Boards  of  Education 

Alabama,  in  1867,  provided  a  Board  of  Education  whose 
members  were  to  be  elected,  two  each,  by  the  Congressional 
districts,  with  a  Superintendent  of  Public  Instruction, 
elected  at  large,  as  its  presiding  officer.  Since  1875,  control 
over  common  schools  has  been  vested  in  the  Superintendent 
alone,  but  two  Boards  of  Trustees,  for  the  two  State  Uni- 
versities, are  constituted  on  a  similar  plan,  except  that 
members  are  now  appointed  by  central  authority  from  the 
districts.2 

(b)  Boards  of  Railroad  Commissioners 

Boards  of  three  members,  charged  with  the  supervision  of 
railway,  or  of  transportation  systems,  to  be  elected  by  the 
voters  of  districts,  appear  in  California,  Kentucky  and 

^a.  Const.  1850,  v,  14,  18  (until  the  War). 

La.  Const.  1852,  130,  134  (until  the  War). 

2  The  Boards  consist  of  two  members  from  the  Congressional  dis- 
trict in  which  the  respective  University  is  situated,  and  one  from  each 
other  district,  together  with  the  Superintendent  and  Governor.  Ap- 
pointments are  made  by  the  Governor,  or — for  one  of  the  two  Boards, 
since  1901 — by  the  surviving  members,  subject  in  both  cases  to  the 
approval  of  the  Senate. 

Ala.  Const.  1867,  xi,  i,  4;  1875,  xii,  9;  1901,  264,  266. 


228  TERRITORIAL  BASIS  OF  GOVERNMENT  [620 

Louisiana ;  in  Kentucky,  however,  the  Legislature  is  author- 
ized to  substitute  election  at  large,  with  or  without  continued 
representation  of  the  districts.  The  districts  themselves  are 
in  California  merely  required  to  be  made  as  nearly  equal  in 
population  as  practicable,  with  no  provision  for  maintaining 
equality;  in  Kentucky,  provisional  districts  are  specified, 
which  the  Legislature  is  authorized  to  change  so  as  to 
equalize  their  population ;  in  Louisiana  they  are  permanently 
specified  in  terms  of  parishes.1 

(c)  California  Board  of  Equalization 

This  taxation  board  consisted,  in  1879,  of  members  to  be 
elected  one  by  each  of  the  (four)  Congressional  districts, 
with  the  Controller  as  ex  officio  member.  In  1884,  the 
State  having  meanwhile  become  entitled  to  two  additional 
Congressmen,  it  was  provided  that  the  districts  should  be 
the  Congressional  districts,  as  established  in  1879,  or  that 
the  Legislature  might  form  four  fresh  districts,  "  as  nearly 
equal  in  population  as  practical  ".2 

(d)  Miscellaneous  Louisiana  Boards 

Since  1898,  Louisiana  also  provides  for  a  Board  of  Ap- 
praisers, to  assess  the  property  of  corporations  engaged  in 
transportation,  and  a  Board  of  Agriculture  and  Immigra- 
tion, each  to  consist  of  members  apointed  by  central  au- 
thority, one  from  each  Congressional  district.  It  is  also 
provided  that  the  State  Board  of  Health  shall  consist  of 
"  representative  physicians  from  the  various  sections  of  the 
State  ".s 

1  Cal.  Const.  1879,  xii,  22. 
Ky.  Const.  1890,  209. 
La.  Const.  1898,  283,  289. 

2  Cal.  *  Const.  1879,  xiii,  9 ;  Am.  1884. 

3  Corporation  Appraisers  are  appointed  by  the  Governor,  Lieutenant- 


621]  MISCELLANEOUS  REPRESENTATION 

5.    DISTRICTS    OF    REPRESENTATION     WITHIN    COUNTIES 

Justices  of  the  Peace  are  sometimes  chosen  by  precincts, 
with  jurisdiction  over  the  entire  county,  and  merely  an  obli- 
gation to  reside  within  their  respective  districts.  County 
authorities  are  sometimes  formed  by  aggregating  individual 
Justices  of  the  Peace  into  Courts  of  Quarter  Sessions,  or 
individual  town  Supervisors  into  Boards,  or  by  utilizing 
Justices'  precincts  as  districts  of  choice  for  independent 
Commissioners.  All  such  distinctions  are  outside  the  scope 
of  this  study.  In  four  States,  however,  including  three 
where  the  provision  survives,  purely  representative  districts 
have  been  introduced  into  counties.  Mississippi,  having 
already  a  Constitutionally  established  county  authority  of 
five  elected  Commissioners,  provided  in  1852  that  they 
should  be  elected  "by  districts";  these  lasted  until  1898, 
when  they  were  converted  into  full  Justice's  precincts, 
though  still  utilized  for  the  original  purpose.1  Texas,  since 
1876  has  provided  for  electoral  "  Commissioners  precincts," 
four  in  number,  independent  of  the  four  to  eight  Justice's 
precincts  also  established;  these  districts  to  be  formed  by 
the  county  authority.2  Florida,  in  1885,  required  the  Leg- 
islature to  provide  for  the  division  of  each  county  into  five 
districts,  from  which  separate  Commissioners  were  to  be 
appointed;  five  years  later,  however,  the  County  Commis- 
sioners themselves  were  to  form  these  districts,  which  were 
to  be  as  nearly  as  possible  equal  in  population,  and  to  be 

Governor,  Treasurer,  Attorney-General  and  Secretary  of  State;  mem- 
bers of  the  Board  of  Agriculture  and  Immigration  by  the  Governor 
and  Senate ;  for  such  an  unimportant  function  as  the  care  of  the 
public  health,  the  Legislature  is  free  to  devise  the  system,  subject  to 
this  sacred  principle  of  territorial  representation. 

La.  Const.  1898,  226,  296,  307;  Am.  1902,  226. 

1  Miss.  Am.  1852,  iv,  20;  Const.  1868,  vi,  20  (until  1890). 

*  By  the   County  Court,  in  the  first  instance ;   subsequently  by  the 


230  TERRITORIAL  BASIS  OF  GOVERNMENT  [622 

full  electoral  districts.1     Kansas  merely  requires  three  elec- 
toral districts.2 

6.    DISTRICTS   OF   REPRESENTATION    WITHIN    CITIES 

City  wards,  already  discussed,  are  of  course  in  their  origin 
representative  districts  for  the  Council,  but  have  received 
Constitutional  recognition  in  connection  with  their  admin- 
istrative use,  in  the  process  of  conducting  popular  elections.3 

7.  SUMMARY 

These  provisions  may  be  summarized  as  a  crude  imitation 
of  those  affecting  Legislative  districts.  The  general  prin- 
ciple of  requiring  single-member  districts  is  adopted,  but 
no  safeguards  are  taken  to  prevent  these  districts  from  be- 
coming, in  the  course  of  time,  widely  unequal.  Is  the  gen- 
eral principle  a  sound  one,  subject  to  correction  in  detail  in 
subsequent  Constitutions  or  amendments?  I  think  not.  As 
regards  Congressional  districts,  it  is  true  that  the  single- 
member  system  is  a  convenient  means  for  preventing  large 
minorities  from  being  submerged,  and  ought  not  to  be  al- 
lowed to  degenerate  into  a  system  whereby  some  or  all  Con- 
gressmen may  be  elected  at  large — ought  rather  to  be  ex- 
tended, so  far  as  this  can  conveniently  be  done,  to  the  choice 
of  Presidential  electors.  Control  over  these  matters,  how- 
ever, is  vested,  by  the  Federal  Constitution,  not  in  the 
States,  but  in  the  State  Legislatures ;  whether  State  Consti- 
tutions can  pass  upon  them  at  all  is  therefore  at  least  open  to 
grave  question.  In  the  other  cases  there  is  no  good  reason 
for  any  sort  of  a  district  system,  whether  crude  or  elaborate, 

Commissioners   Court,   consisting  of  these   four   Commissioners   with 
the  County  Judge  as  presiding  officer. 

Tex.  Const.  1876,  v,  18. 

1  Fla.  Const.  1885,  viii,  5 ;  *  Am.  1900. 

J  Kans.  Am.  1902,  iv,  2. 

3  Vide  ch.  iv,  sec.  ii,  p.  89,  supra. 


623]  MISCELLANEOUS  REPRESENTATION  231 

whether  combined  with  district  election  or  independent  of 
the  same,  whether  imposed  by  the  Constitution,  as  in  the 
few  instances  which  have  come  under  our  survey,  or  intro- 
duced by  the  Legislature  at  its  own  discretion.  The  end 
in  view  is  unexceptionable — political  office  is  not  to  be 
monopolized  by  a  small  section  of  the  State;  in  matters  of 
concern  to  all  sections,  the  State  is  to  be  as  broadly  as  pos- 
sible represented.  This,  however,  is  the  precise  end  which, 
under  the  conditions  of  party  government,  appointing  or 
nominating  authorities  can  most  surely  be  trusted  to  aim 
at,  for  themselves.  Nothing  is  more  essential  to  party  wel- 
fare than  the  wide  appeal.  Patronage  is  distributed  so  as 
to  build  up  the  organization  in  counties  where  it  is  weak. 
The  ticket  is  framed  in  such  a  manner  as  to  appeal  to  the 
widest  possible  variety  of  voters.  Among  the  many  criti- 
cisms to  which  the  professional  politician  is  subjected,  this 
one,  at  least,  has  never  been  heard — he  has  never  been 
charged  with  not  paying  sufficient  attention  to  considera- 
tions of  political  availability,  whether  racial  or  geographic. 
He  has  hard  enough  work  as  it  is  to  build  up  a  civil  service 
which  shall  satisfy  local  claims  and  at  the  same  time  be  in- 
dividually efficient.  The  enforced  recognition  of  artificial 
lines  tends  merely  to  make  this  a  little  harder. 

The  demand  that  the  section  of  territory,  broad  or  small, 
in  which  we  reside,  or  in  which  our  interests  lie — with 
which,  in  one  way  or  another,  we  have  come  to  have  per- 
sonal associations — shall  be  represented  in  those  who  gov- 
ern it,  is  one  of  the  strongest  of  human  instincts.  It  is  this 
feeling  which,  over  large  territories,  stimulates  loyalty  to 
the  native-born  king  rather  than  to  the  foreign  conqueror. 
It  is  this  feeling  which,  operating  on  a  smaller  scale,  de- 
mands that  this  same  king's  subordinates — or  those  authori- 
ties who  have  come  to  share  his  powers — or  those,  finally, 
who  have  ousted  and  replaced  him — shall,  in  a  mere  par- 


232  TERRITORIAL  BASIS  OF  GOVERNMENT  [624 

ticular  sense,  be  our  neighbors.  It  affects  equally  the  choice 
of  officials  having  purely  local  powers,  and  the  composition 
of  organs  of  broader  jurisdiction — Sheriffs  and  Justices  in 
the  American  county,  as  earlier  in  the  English  shire — Leg- 
islatures in  the  State,  following  Councils  and  Assemblies  in 
the  Colony,  and  Lords  and  Commons  in  the  original  model. 
When  conditions  are  favorable,  it  takes  the  form  of  de- 
manding this  representation,  not  merely  for  one's  locality, 
but  for  oneself,  but  in  periods  of  centralized  authority  fre- 
quently survives  the  loss  of  self-governing  privileges.  It 
is  a  feeling  which  cannot  successfully  be  withstood,  and  is 
perhaps  the  distinguishing  feature  of  civil  as  opposed  to 
military  government — of  a  system  which,  resting  upon  com- 
mon acquiescence,  endures  until,  by  the  slow  diffusion  of 
ideas,  the  subject  wakes  up  to  the  realization  that  he  wants 
a  change — as  opposed  to  one  which  only  the  immediate 
threat  of  physical  force  keeps  standing. 

But  although  the  instinct  itself  is  ineradicable,  the  ter- 
ritorial limits  to  which  it  is  applied  are  capable,  it  would 
seem,  of  an  almost  indefinite  expansion.  The  traditions  of 
the  English  House  of  Commons  are  so  glorious  that  we  are 
a  little  too  apt,  I  think,  to  look  upon  a  body  organized  on 
that  general  model  as  the  last  word  of  democratic  develop- 
ment, and  to  forget  that,  although  originally  devised  as  a 
method  by  which  local  districts  might  adjust  with  one  an- 
other their  respective  fiscal  responsibilities,  its  most  im- 
portant use  was  as  a  means  for  securing  common  action  to 
a  large  community  of  feeling.  Broad  party  lines  obliterated 
narrow  sectional  divisions,  while,  as  between  parties  them- 
selves, acquiescence  in  majority  rule  was  a  symptom  of  that 
broader  unity  which  included  the  entire  nation.  Neigh- 
borliness,  in  short,  under  the  shadow  of  Commons  and  the 
Crown,  broadened  into  patriotism. 

Now,  the  Commons  was  an  indispensable  means  of  secur- 


625]  MISCELLANEOUS  REPRESENTATION  233 

ing  this  broad  community  of  feeling,  in  any  other  shape  than 
a  blind  subjection  to  royal  authority.  With  us,  however, 
the  device  of  narrow  sectional  representation  is  no  longer 
needed.  We  have  learned,  in  popular  elections  covering 
areas  larger  than  the  entire  United  Kingdom,  to  acquiesce 
in  the  results  of  majority  rule  and  to  feel  ourselves,  however 
the  election  goes,  always  a  united  people.  The  agrega- 
tion  of  district  representatives  is  the  middle  stage  in  an 
organic  development  of  which  the  first  form  was  the  people 
of  a  small  Teutonic  community  in  direct  control  of  its  own 
local  affairs;  the  second,  the  election  of  representatives, 
for  purely  local  purposes,  by  this  people.  Taking  up  the 
process  at  the  point  to  which  England  had  brought  it,  our 
genius  for  political  organization  enabled  us  to  place,  side  by 
side  with  the  aggregation  of  these  representatives,  a  single 
one — the  Governor — elected  by  the  people  of  the  entire  State. 
Finally,  completing  the  cycle,  we  have  in  the  Referendum, 
first  commonly  applied  to  changes  in  the  Constitution 
itself,  this  large  community  directly  exercising  governmental 
functions.  It  is  in  the  habits  of  thought  engendered  by 
these  last  two  operations  that  our  political  unity  now  rests. 
Local  districts  of  representation  have  reverted  to  their  origi- 
nal use  as  a  means  of  reconciling  such  local  animosities  as, 
in  the  shadow  of  this  general  unity,  still  exist,  and  in  order 
to  have  any  value  for  this  purpose  should  correspond  to  real 
differences  in  local  interests  and  feeling.  In  the  Union  as  a 
whole  such  differences,  for  historical  reasons,  still  exist  as 
between  the  States.  Within  the  States,  in  a  few  cases,  dis- 
tributions of  mountain  and  plain  constitute  fairly  well-de- 
fined local  areas.  Broadly  speaking,  however,  the  distinc- 
tion between  urban  and  rural  communities  is  the  important 
one  within  each  State.  Whether  we  are  dealing  with  Leg- 
islative or  Administrative  bodies,  whether  the  districts  are 
for  jurisdictional  purposes,  or  for  electoral  purposes,  or  for 


234  TERRITORIAL  BASIS  OF  GOVERNMENT         [626 

the  purpose  of  securing  local  representation  without  local 
election,  any  system  which  fails  to  recognize  the  prime  dis- 
tinction, in  problems  and  in  spirit,  between  a  stretch  of 
farm  lands  and  a  congested  town,  may  be  condoned  as  an 
unimportant  survival  of  old  ideas,  but  is  quite  without  justi- 
fication in  reason. 


CHAPTER  X 

CONCLUSION 

PROBABLY  the  most  vivid  impression  left  with  the  reader 
of  the  preceding  pages  will  be  one  of  extreme  confusion. 
This  effect  is  somewhat  enhanced  by  the  comparative  method 
of  treatment.  The  situation  in  no  single  State  is  as  bad  as 
in  the  Union  as  a  whole.  It  must  be  admitted  however  that 
there  is  great  evidence  of  a  doctrinaire  adoption  of  scat- 
tered ideas,  and  little  evidence  of  any  attempt  to  create  a 
comprehensive  and  harmonious  system,  intelligently  adapted 
to  present-day  problems.  What  is  true  in  regard  to  the 
particular  topic  of  governmental  structure  which  we  have 
singled  out  for  discussion  here,  is  equally  true  of  the  field 
as  a  whole,  and  would  be  still  more  tediously  evident  if 
we  were  to  extend  our  survey  into  the  realms  of  statutory 
experiment.  By  far  the  greater  number  of  existing  provi- 
sions are  the  products  of  manhood  suffrage,  working  under 
the  practical  limitations  imposed  by  a  rigidly  bi-party  sys- 
tem. Shall  we  say  that  after  two  generations  of  trial — I 
take  the  Mexican  War  as  marking,  roughly,  the  maturity 
of  the  system — under  conditions  unusually  favorable  so  far 
as  concerns  material  prosperity  and  freedom  from  external 
pressure — the  best  contribution  which  democracy  has  been 
able  to  make  to  the  problem  of  providing  a  proper  form  of 
government  for  large  territorial  areas  has  been  to  take  a 
few  inherited  ideas,  tack  on  a  few  general  principles  pushed 
to  the  extreme,  and  then,  with  no  discernible  unifying  aim 
except  that  of  keeping  big  cities  under,  trust  to  Heaven  and 
627]  235 


236  TERRITORIAL  BASIS  OF  GOVERNMENT  [628 

our  own  good  sense  to  make  the  product  work  satisfac- 
torily? 

This  would  be  a  somewhat  depressing  conclusion,  alike 
for  those  of  us  who  earnestly  believe  that  our  democratic 
foundations  are  the  only  ones  upon  which  a  permanently 
great  nation  can  be  built,  and  for  those  whose  colder  reason 
finds  no  difficulty  in  abandoning  this  faith,  but  is  unable 
to  discover  any  practicable  means  whereby  we  may  be  made 
less  democratic.  Various  general  qualifications  of  our 
censure  suggest  themselves.  Two  generations  are  a  small 
period  in  the  life  of  a  people  attempting  a  task  which,  on 
this  scale  of  magnitude,  has  never  been  faced  before.  The 
War  between  the  North  and  South  had  a  demoralizing  in- 
fluence beyond  what  any  but  the  most  disastrous  foreign 
conflict  could  have  brought;  and  although  manhood  suf- 
frage is  perhaps  responsible  for  the  actual  call  to  arms,  it 
was  not  responsible  for  the  institution  which  clove  the 
nation  wide  apart  in  spirit.  If  we  compare  our  State  gov- 
ernments with  those  built  upon  superior  strata  of  the  social 
whole,  we  shall  not  find  these  latter  much  superior  in  sim- 
plicity and  technical  finish,  if  I  may  use  the  term;  and  1 
much  doubt  if  the  lower  strata  are  so  well  satisfied  under 
them.  I  think  also  that  one  who  reads  attentively  the  story 
of  structural  development  which  I  have  tried  to  tell,  will 
find,  amidst  much  perfunctory  detail,  flashes  of  real  con- 
structive ability.  And  even  our  tendency  to  make  frequent 
change,  dashing  madly  after  the  latest  political  panacea,  is 
only  an  extreme  form  of  an  openness  to  new  ideas,  which, 
emptied  into  the  crucible  of  experiment  to-day,  are  of  solid 
assistance  to  us  to-morrow. 

In  addition  to  these  general  observations  which,  with 
many  others,  suggest  themselves,  two  points  seem  to  me  to 
deserve  especial  consideration. 

One  is,  that  a  very  large  part  of  the  confusion  into  which 


629]  CONCLUSION  237 

our  system  of  local  districts  has  fallen  has  been  due  to  the 
bankruptcy  of  the  county  system  of  government.  The 
county  was  formed  at  a  period  when  means  of  communica- 
tion were  immeasurably  inferior  to  those  of  to-day,  and, 
partly  because  of  its  use  as  a  unit  of  representation,  has 
tended  to  become  rather  smaller  than  larger.  It  is  to-day 
so  obviously  ill-adapted  to  the  purpose  of  a  prime  dividing 
line  between  coordinate  officers  of  the  central  government, 
that  it  is  hard  for  us  to  adjust  ourselves  to  the  conception 
that  it  played  a  part  in  our  administrative  machinery,  for 
a  time,  analogous  to  that  played  in  modern  Francfe  by  the 
departement.  Its  officers  were  appointed  by  the  central  au- 
thority. Only  12  counties,  for  instance,  existed  in  New 
York,  at  the  time  of  the  Revolution  (besides  two  in  Ver- 
mont) as  against  61  to-day;  12  in  Pennsylvania,  as  against 
67;  34  in  North  Carolina,  as  against  97;  8  in  Georgia,  as 
against  146.  It  was  a  perfectly  practicable  arrangement 
at  the  time  to  distribute  governmental  functions  among  the 
comparatively  small  number  of  appointive  subordinates. 
Later  the  impulse  of  local  self-government,  always  more 
easily  applied  to  small  units  than  to  large,  placed  these 
officials  upon  a  popular  basis,  so  that  to-day  we  never  think 
of  the  county  as  being  primarily  a  division  of  the  State, 
but  always  as  a  purely  local  unit.  Hence,  when  the  move- 
ment towards  centralizing  governmental  functions  began, 
and  large  administrative  divisions  were  sought,  none  were 
ready  to  hand,  and  Congressional  districts  had  to  be  im- 
pressed into  service,  or  new  and  strange  districts  created. 
Hence  the  necessity  of  compounding  counties  into  judicial 
circuits  or  districts.  Hence  the  anomaly  of  large  cities 
forming  counties,  or  even  groups  of  counties,  by  themselves. 
Hence  much  incidental  confusion  in  the  systems  of  repre- 
sentation. 

Now,  manhood  suffrage  did  not  create  the  county  system. 


238  TERRITORIAL  BASIS  OF  GOVERNMENT  [630 

It  had  to  take  it  as  it  found  it.  Few  nations  have  had  the 
advantage  of  modern  France,  in  being  able  to  lay  out  the 
territorial  bases  of  its  government  upon  a  tabula  rasa.  And 
manhood  suffrage  has  to  get  along  with  this  system  as  best 
it  may  to-day.  The  mind  recoils  from  the  practical  con- 
fusion which  would  result  from  the  attempt  to  convert  the 
counties,  with  all  their  subdivisions,  cross-divisions  and 
overlapping  sets  of  unions,  into  a  symmetrical  gridironed 
system.  All  that  can  be  done,  then,  is  to  make  the  best  of 
conditions  which,  when  all  is  said  and  done,  are  not  much 
worse  than  exist  in  Prussia  and  England  to-day.  If  these 
conventional  lines,  which  have  lost  all  contemporary  signifi- 
cance, cannot  be  obliterated,  at  least  they  may  be  utilized  in 
a  rational  manner. 

The  other  point  worth  emphasizing  is  that  a  very  simple 
explanation  exists  for  the  chaos  and,  from  the  point  of  view 
of  the  dominant  city-dweller,  the  unfairness,  of  the  pre- 
vailing Legislative  structure.  Provisions  affecting  the  com- 
position of  the  Legislature  are  what  they  are,  because  they 
have  been  drafted  by  members  of  already  constructed  Leg- 
islatures. 

That  the  Legislature  cannot  be  trusted  to  determine  the 
rules  of  its  own  being,  we  have  always  assumed  as  axiom- 
atic. And  the  wisdom  of  laying  down  Constitutional  rules 
of  apportionment,  and  the  beneficial  working  of  these  rules 
in  the  main,  are  clear  from  a  comparison  of  our  districting 
with,  say,  the  quite  simple  but  grossly  unfair  distribution 
of  seats  now  provided  for  the  German  Reichstag.  As  often, 
when  we  drop  the  ideal  standard,  and  test  our  institutions 
by  those  of  foreign  lands,  we  find  ourselves  in  a  surprisingly 
healthy  condition.  The  reason  why,  however,  we  are  in 
some  danger  of  losing  our  comparative  advantage  is  that 
Constitutional  Conventions  have  been  constructed  on  the 
model  of  one  or  both  houses  of  the  Legislature,  and  that  the 


631]  CONCLUSION 

existing  system  of  districts  has  thus  been  in  a  sense  self- 
perpetuating.  It  is  not  in  human  nature  for  representatives, 
chosen  in  numerous  small  electoral  divisions,  to  look  with 
favor  upon  a  reduction  in  total  number  which  would  rele- 
gate a  good  part  of  them  to  political  obscurity.  It  is  not 
in  human  nature  for  a  rural  clique,  accustomed  to  deal 
with  urban  problems  according  to  their  own  ideas  as  to 
what  is  best,  to  face  with  equanimity  the  prospect  of  urban 
domination.  Hence  districts  have  always  grown  smaller, 
never  larger,  in  territorial  area.  Hence  the  existing  dis- 
tribution of  seats  has  rarely  been  changed  so  as  to  correct 
injustice  to  the  towns,  and  has  frequently  been  changed  so 
as  to  prevent  equal  representation  in  future. 

This  explanation,  once  clearly  understood,  is  so  com- 
plete that  the  reasoning  is  likely  to  be  carried  too  far.  It 
may  be  argued  that  not  only  has  this  been  true  in  the  past, 
but  that  it  must  be  so  in  the  future  too;  that  we  cannot 
hope  to  change  human  nature,  and  that  the  fundamental 
fallacy  of  a  democratic  system  of  government  is  thus  re- 
vealed; that  a  benevolent  despot,  imposing  justice  upon 
others,  is  at  least  a  logical  conception,  even  if  it  is  not  often 
realized;  but  that  the  notion  of  a  people  ruling  themselves 
is  a  vicious  circle  in  thought.  No  man  can  lift  himself  by 
his  own  bootstraps.  There  must  be  something  outside  him- 
self on  which  he  can  depend.  This  something,  in  our  gov- 
ernment, has  turned  out  to  be,  so  it  may  be  argued,  a  self- 
perpetuating  oligarchy,  working  under  cover  of  represen- 
tative government  primarily  in  its  own  interests.  It  is  the 
dawning  realization  of  this  sad  truth,  so  one  is  tempted  to 
think,  that  has  produced  the  current  outcry  against  machine 
government  and  "  bosses  ". 

Apart  from  the  question  of  why  it  can  be  assumed  that 
the  benevolent  despot,  also,  will  not  possess  human  nature, 
it  seems  to  me  that  experience  reveals  one  simple  fact  which 


240  TERRITORIAL  BASIS  OF  GOVERNMENT  [632 

is  quite  sufficient  to  shatter  any  such  chain  of  reasoning. 
I  refer  to  the  conduct  of  elective  office-holders  after  an  ad- 
verse election.  No  one  who  is  familiar  with  the  crimes 
which  in  past  generations  have  been  committed  by  men  who 
possessed  political  power  and  wished  to  retain  it,  could  have 
believed,  if  he  did  not  see  it  daily  occurring  before  his  eyes, 
that  by  the  peaceful  process  of  recorded  votes  political  over- 
turns could  ever  be  effected.  It  is  contrary  to  human  nature, 
but  it  happens.  It  is  not,  of  course,  the  system  of  govern- 
ment which  secures  this  result.  It  is  the  pressure  of  public 
opinion.  That  is  the  "  something  outside  "  on  which  de- 
mocracy depends  for  its  successful  working  and  for  its  con- 
tinuance. Once  let  public  attention  be  fastened  upon  the 
composition  of  the  Legislature,  and  parties  will  tumble  over 
themselves  in  their  haste  to  secure  popular  favor. 

The  two  especial  weaknesses,  then,  of  our  State  system  of 
political  subdivisons  are  their  complexity,  and  the  manner 
in  which  they  discriminate  against  urban  centers.  The 
first  evil  is  the  more  difficult  to  remedy,  and  the  less  im- 
portant. For  although,  as  I  have  previously  pointed  out. 
symmetry  and  simplicity  have  a  genuine  practical  value,  in 
opening  the  door  of  intelligent  political  discussion  to  a 
larger  body  of  citizens,  still,  life  is  necessarily  a  complex 
thing,  and  we  have  to  get  along  with  it  as  we  find  it.  Life 
is  not,  however,  necessarily  an  unfair  thing,  and  equal  repre- 
sentation as  between  town  and  country  cannot  but  seem  to 
the  average  city-dweller,  once  his  attention  is  turned  to  it, 
as  a  necessary  complement  of  equal  voting  power  as  be- 
tween man  and  man,  and  to  have  its  roots  in  simple  justice. 
Speaking  in  a  purely  political  sense,  it  would  not  in  the  least 
be  necessary  to  pay  any  attention  to  the  views  of  the  aver- 
age city-dweller,  either  about  justice  or  about  anything  else, 
if  there  were  not  so  many  of  him.  Being,  however,  the 
important  personage  that  he  is,  his  conception  of  rights  and 


633]  CONCLUSION 

wrongs  is  going  to  be  the  one  that  will  prevail,  and  we  shall  ^ 
have  to  accept  it  even  if  we  think  it  faulty.  This  acceptance 
is  important;  and  it  is  bound  to  come;  there  remain  only 
the  questions  of  detail  and  of  method.  In  the  opinion  of  the 
writer,  the  change  from  a  centralized  State  government,  to 
a  system  of  broad  local  charters,  for  rural  and  urban  terri- 
tory alike,  would  so  diminish  the  importance  of  the  Legis- 
lature, that  the  precise  composition  of  this  body  would  with 
little  friction  settle  itself,  along  lines  dictated  by  economic 
conditions. 


BIBLIOGRAPHICAL   NOTE 


I.    DOCUMENTARY  FIELD 

The  Secession  and  early  Reconstruction  instruments  have  been  ex- 
cluded from  the  survey,  on  the  ground  that,  having  proved  to  be 
without  force,  as  against  Congressional  action,  they  are  more  ap- 
propriately to  be  classed  with  the  organic  laws  of  Federal  territories 
than  with  genuine  State  Constitutions.  Early  Iowa  and  Kansas  in- 
struments, more  or  less  formally  adopted,  but  superseded  prior  to  the 
admission  of  these  states  into  the  Union,  have  been  omitted,  on  this 
same  general  principle.  To  have  included  proposed,  but  unratified, 
instruments  or  amendments,  would  have  expanded  the  documentary 
field  to  unworkable  dimensions.  The  revived  Massachusetts  Charter,  in 
force  until  1780,  the  early  instruments  of  South  Carolina,  and  the 
War  Ordinances  of  Missouri,  have,  on  the  other  hand,  been  included, 
as  expressions  of  the  original  plenary  or  residuary  powers  of  these 
States,  even  though  not,  strictly  speaking,  Constitutions.  For  the  pur- 
pose of  completing  the  Continental  development  of  the  United  States, 
it  has  seemed  best  also  to  include  the  recently  adopted  instruments  of 
New  Mexico  and  Arizona,  in  spite  of  the  fact  that,  at  the  moment  of 
writing,  these  States  have  not  yet  been  admitted  into  the  Union. 

Provisional  determinations,  expressed  in  the  Constitutions,  but  not 
restricting  the  Legislatures,  or  restricting  them  only  for  a  limited  term 
of  years,  have  of  course  been  omitted. 

II.  TEXTS 

F.  N.  Thorpe's  The  Federal  and  State  Constitutions  (7  vols.,  Gov- 
ernment Printing  Office,  1909)  is  an  indispensable  mechanical  aid  to 
the  student  of  State  Constitutions.  When  the  time  is  ripe  for  a  fresh 
collection,  incorporating  the  new  material  which  will  have  accumulated 
by  then,  it  is  greatly  to  be  hoped  that  the  editor  will  be  more  con- 
scientious. For  criticism  of  Thorpe's  collection,  see  Professor  J.  F. 
Jameson,  in  the  American  Historical  Review  for  October,  1509,  and 
Professor  W.  F.  Dodd  in  the  American  Political  Science  Review  for 
February,  1910. 

Authorities  needed  to  supplement  Thorpe  are  arranged  below  under 
the  several  States.  All  are  actually  required,  in  -order  either  to  cor- 
242  [634 


635]  BIBLIOGRAPHICAL  NOTE  2^ 

rect  his  grosser  errors  and  omissions,  to  elucidate  obscurities  due  to 
his  unsystematic  arrangement,  or  to  carry  the  survey  beyond  the  year 
(usually  1906)  at  which  his  compilation  stops.  No  attempt  has  been 
made  to  verify  his  text,  to  change  the  dates  attached  to  complete  in- 
struments, nor — except  in  one  or  twe  glaring  instances — to  correct 
errors  in  proof-reading.  On  the  other  hand,  I  have  not  confined  my- 
self to  the  particular  provisions  included  in  the  subject-matter  of  this 
study,  but  have  considered  the  needs  of  the  student  of  State  Constitu- 
tions in  general.  I  cannot  believe  that  I  have  discovered  all  the 
errors,  and  shall  be  grateful  to  have  my  attention  called  to  those 
I  have  overlooked. 

The  italicized  year  under  each  State  denotes  the  year  to  the  end 
of  which  the  survey  has  been  made.  When  no  reference  follows, 
my  authority  for  declaring,  both  that  amendments  printed  as  pro- 
posed by  the  Legislature  were  ratified  by  the  people,  and  that  no  more 
recent  amendments  have  been  adopted,  is  the  Secretary  of  State  for 
the  commonwealth  in  question.  In  this  connection,  my  thanks  for 
prompt  and  full  response  to  enquiries  are  especially  due  to  Hon.  W.  T. 
Smithers,  Sec.  of  State  for  Delaware;  Mr.  John  A.  Lapp,  Legislative 
Reference  Librarian,  Indiana  State  Library;  Hon.  W.  C.  Hayward, 
Sec.  of  State  for  Iowa;  Hon.  F.  C.  Martindale,  Sec.  of  State  for  Mich- 
igan; Hon.  P.  D.  Norton,  Sec.  of  State  for  North  Dakota;  Hon.  J. 
Frederick  Parker,  Sec.  of  State  for  Rhode  Island;  Hon.  H.  W.  Good- 
loe,  Sec.  of  State  for  Tennessee;  Hon.  B.  O.  James,  Sec.  of  State  for 
Virginia;  and  Hon.  R.  C.  Myrick,  Dep.  Sec.  of  State  for  Vermont. 

Mr.  H.  M.  Lyc!enberg,  of  the  New  York  Public  Library,  has  ren- 
dered me  a  great  service  in  giving  me  access  to  its  shelves  during  the 
period  of  removal  to  the  new  building;  while  to  Mr.  Franklin  O.  Poole, 
Librarian  of  the  Association  of  the  Bar  of  New  York  City,  my  obli- 
gations are  quite  incalculable. 

ALABAMA 

For  amendment  to  the  instrument  of  1901,  adopted  in  1908,  affecting 
the  power  of  the  State  to  engage  in  works  of  internal  improvement, 
see  MS.  copy  in  N.  Y.  Bar  Association  Library, 
ip/o  (ibid}. 

ARIZONA 
For  the  instrument  of  1911,  see  House  Doc.,  6ist  Cong.,  no.  1423. 

ARKANSAS 

For  original  of  amended  article  VII,  <:ec.  20,  of  the  instrument  of 
1868,  see  Thorpe,  App.  p.  4157. 

Professor  Dodd  points  out  that  Thorpe's  amendments  2  and  3,  to 
the  instrument  of  1874,  were  knocked  out  by  the  Courts. 

For  Initiative-Referendum  amendment,  adopted  in  1910,  see  Ark. 
Session  Laws,  1909. 

1910. 


244 


BIBLIOGRAPHICAL  NOTE 


CALIFORNIA 

For  the  original  instrument  of  1879,  and  for-  all  amendments  to  the 
same,  see  the  compilation  of  Constitutions,  etc.,  issued  by  the  Secretary 
of  State,  1909. 

The  amendments  given  as  to  be  submitted  in  1910  were  all  adopted. 

1910. 

COLORADO 

For  amendments  omitted  by  Thorpe,  and  for  subsequent  amend- 
ments, prior  to  1910,  see  The  Revised  Statutes  of  Colorado,  Denver, 
1908. 

For  amendments  adopted  in  1910,  see  Colo.  Session  Laws,  1909,  1910. 

1910. 

CONNECTICUT 

Article  XXXIII  of  amendments  was  adopted  at  the  same  date  as 
the  preceding  article. 
1910. 

DELAWARE 

For  Bill  of  Rights  of  1776,  see  The  Constitutions  of  the  several 
independent  States  of  America,  London,  1783. 

The  date  of  the  amendment  to  the  instrument  of  1792  is  Feb.  5, 
1802  (Laws  of  the  State  of  Delaware,  Wilmington,  1829). 

For  an  amendment  to  the  instrument  of  1831,  adopted  in  1893,  sec 
Del.  Session  Laws,  vol.  19. 

Article  IX,  sees.  3  and  6,  of  the  instrument  of  1897,  as  given  by 
Thorpe,  are  the  provisions  as  amended  in  1903.  For  the  unamended 
provisions,  see  Journal  of  the  Constitutional  Convention,  1897. 

For  Registration  Fee  amendment,  adopted  in  1507,  see  Del.  Session 
Laws,  1907. 

1910. 

FLORIDA 

For  amendments  to  the  instrument  of  1885,  adopted  1900-04,  see  The 
General  Statutes  of  the  State  of  Florida,  St.  Augustine,  1906. 

For  amendments  to  article  V,  adopted  in  1910,  see  Fla.  Session  Laws, 
1909,  marked  copy  in  N.  Y.  Bar  Association  Library. 

19/0  (ibid). 

GEORGIA 

For  amendments  to  the  instrument  of  1877,  omitted  by  Thorpe,  and 
for  subsequent  amendments,  see  The  Code  of  the  State  of  Georgia, 
Atlanta,  1911. 

1909  (ibid). 

IDAHO 

For  Am.  1894,  XVIII,  6,  see  Idaho  Session  Laws,  1893. 

Am.  1896,  XVIII,  6;  1898,  XVIII,  4,  7,  9;  1902,  XIII,  2;  1906,  V,  18; 
VI,  2;  are  given  by  Thorpe  without  date. 

For  Am.  1900,  IX,  11,  and  Am.  1906,  VII,  9,  see  The  Revised  Codes 
of  Idaho,  Boise,  1908. 

For  amendments  adopted  in  1908,  see  Idaho  Session  Laws,  1907, 
checked  by  N.  Y.  State  Library  Yearbook  of  Legislation,  1908. 

1908  (ibid). 


637]  BIBLIOGRAPHICAL  NOTE  245 

ILLINOIS 

Thorpe  conceals  the  instrument  of  1848  under  the  running  headline 
of  the  preceding  instrument  of  1818. 

Of  seven  amendments  adopted  to  the  instrument  of  1870,  the  first 
three  and  the  fifth  are  incorporated  in  Thorpe's  text,  the  unamended 
provisions  appearing  in  the  notes  below.  For  the  fourth,  see  p.  1052. 

For  Chicago  Government  amendment,  adopted  in  1904,  see  The 
Revised  Statutes  of  the  State  of  Illinois,  Chicago,  1905. 

For  Canal  amendment,  adopted  in  1908,  see  111.  Session  Laws,  1907, 
checked  by  Yearbook  of  Legislation. 

1908  (ibid). 

INDIANA 

For  the  originals  of  amended  provisions  in  the  instrument  of  1851, 
see  Thorpe,  pp.  1094-5,  "Article  IV,  sec.  22,  In  relation  to  fees  and 
salaries,"  has  reference  merely  to  that  paragraph  of  the  section. 
(Cf.  Statutes  of  the  State  of  Indiana,  Indianapolis,  1876). 

When  no  date  is  given  for  amendments  inserted  in  the  text,  read 
"  1881  ".  (Cf.  Burns'  Annotated  Indiana  Statutes,  Indianapolis,  1908). 

No  amendment  since  1881. 

1910. 

IOWA 

For  Eminent  Domain  amendment,  adopted  in  1908,  see  Iowa  Offi- 
cial Register,  1909-10. 

1910. 

KANSAS 

For  the  originals  of  amended  provisions,  see  General  Statutes  of 
Kansas,  /pop,  Topeka,  1910. 

The  provisions  given  by  Thorpe,  as  to  be  submitted  in  1906,  were  all 
adopted,  (ibid). 

/pop  (ibid). 

KENTUCKY 

In  article  II,  sec.  6,  of  the  instrument  of  1799,  Thorpe  omits  the 
following  between  lines  11  and  12:  "may  not  have  a  sufficient  number 
of  qualified  electors  to  entitle  it  to  one  representative,  and  when  the 
adjacent  county  or  counties  may"  (The  Kentucky  Statutes,  Louis- 
ville, 1909). 

1908  (Yearbook  of  Legislation). 

LOUISIANA 

For  abrogation  of  article  50,  of  the  instrument  of  1868,  in  1870,  see 
Report  of  the  Secretary  of  State,  1902. 

For  the  unamended  instrument  of  1879,  and  for  amendments  to  the 
same,  see  ibid. 

For  amendments  to  the  instrument  of  1898,  adopted  in  1908,  see 
Constitution  and  Revised  Laws  of  Louisiana,  N.  O.,  1910. 

/pop   (ibid). 

MAINE 

For  the  unamended  instrument,  see  Thorpe,  App.  p.  4159. 

For  amendments  adopted  prior  to  1877,  see  Thorpe,  App.  p.  4179- 

For  amendments  adopted  1877 — IQO2,  see  Thorpe,  p.  1664. 

For  Initiative-Referendum  amendment,  adopted  in  1908,  see  Me. 
Session  Laws,  1907. 


246  BIBLIOGRAPHICAL  NOTE  [638 

N.  B.  Pages  1646  to  1664  of  Thorpe  give  the  instrument  as  amended 
in  1876,  with  revised  numbering  of  sections,  officially  adopted  in  that 
year.  My  references,  unless  otherwise  noted,  are  to  the  original 
numbering. 

1910. 

MARYLAND 

For  omitted  amendments  to  the  instrument  of  1776  (including  an 
important  suffrage  provision),  and  for  omitted  words  in  Am.  1799, 
VI  (St.  Mary's  county,  "three"  districts;  Frederick  county,  "seven") 
see  The  American's  Guide,  Philadelphia,  1832,  or  later  editions  of 
this  manual. 

79/0. 

MASSACHUSETTS 

For  amendment  affecting  the  tenure  of  Justices  of  the  Peace  and 
Notaries  Public,  adopted  in  1907,  see  Mass.  Session  Laws,  1910. 
1910  (ibid). 

MICHIGAN 

For  the  unamended  instrument  of  1850,  see  Thorpe,  App.  p.  4204. 

For  amendments  adopted  prior  to  1877,  see  Thorpe,  App.  p.  4235. 

The  substance  of  most  amendments  adopted  between  1877  and  1905, 
inclusive,  may,  with  a  little  trouble,  be  discovered  from  Thorpe,  pp. 
1944-74,  by  using  the  footnotes,  and  the  Summary,  pp.  1974-80.  Note 
that  article  X,  10  was  first  amended  in  1903 ;  and  article  XIV,  9,  in  1893. 

For  six  amendments,  however,  to  article  VI,  6,  from  1881  to  1903 
inclusive,  see  Mich.  Session  Laws,  1881,  1883,  1885,  1889,  and  1903. 

For  an  amendment  to  article  IX,  i,  adopted  in  1882,  see  Mich. 
Session  Laws,  1883. 

For  article  IV,  49,  in  its  original  form,  as  adopted  in  1893,  see  The 
Compiled  Lazvs  o'f  the  State  of  Michigan,  Lansing,  1899. 

For  three  amendments  adopted  in  1907,  see  Mich.  Session  Laws,  19-07. 

For  the  instrument  of  1908,  see  Manual  of  the  Constitutional  Con- 
vention of  Michigan,  1907. 

For  an  amendment  affecting  the  bonded  indebtedness  of  counties, 
adopted  in  1910,  see  Mich.  Session  Laws,  1909. 

79/0. 

MINNESOTA 

For  the  unamended  instrument  of  1857,  see  The  Public  Statutes  of 
the  State  of  Minnesota,  St.  Paul,  1859. 

For  amendments  made  prior  to  1873,  see  The  Statutes  at  Large  of 
the  State  of  Minnesota,  Chicago,  1873. 

For  amendments  made  1873-88,  see  The  General  Statutes  of  the 
State  of  Minnesota,  St.  Paul,  1888. 

For  Municipal  Charter  amendment,  in  its  original  form,  as  adopted 
in  1896,  see  Minn.  Session  Laws,  1897. 

Other  amendments,  prior  to  1906,  may  be  found  in  Thorpe,  scattered 
through  the  text. 

For  amendment  affecting  power  to  tax,  adopted  in  1906,  see  Revised 
Laws  oj  Minnesota,  Supplement,  1909,  St.  Paul,  1910. 

1909  (ibid). 


639]  BIBLIOGRAPHICAL  NOTE  247 

MISSISSIPPI 

For  Donation  amendment,  adopted  in  1908,  see  Miss.  Session  Laws, 
1908. 

1908  (ibid). 

MISSOURI 

For  important  Judiciary  amendment  to  instrument  of  1875,  adopted 
in  1884,  see  The  Revised  Statutes  of  the  State  of  Missouri,  Jefferson 
City,  1909. 

On  p.  2274,  for  "sec.  7",  read  "sec  6",  and  omit  Am.  1900,  sec.  i, 
declared  invalid  by  the  Courts  (ibid). 

On  p.  2275,  for  "sec.  2"  (bis)  read  "sec.  12"  (ibid). 

Fcr  amendments  adopted  since  1902  see  ibid.,  or  Mo.  Session  Laws, 
1909. 

79/0. 

MONTANA 

The  Initiative-Referendum  amendment,  given  by  Thorpe  as  to  be 
submitted  in  1906,  was  ratified.  (The  Revised  Codes  of  Montana  of 
1907,  Helena,  1908). 

For  Tax  Limitation  amendment,  adopted  in  1908,  see  Mont.  Session 
Laws,  1907,  checked  by  Yearbook  of  Legislation,  1908. 

1908  (ibid). 

NEBRASKA 

For    Railway    Commission    amendment,    adopted   in    1906,    see    The 
Compiled  Statutes  of  the  State  of  Nebraska,  Lincoln,  1909. 
1910. 

NEVADA 

For  the  unamended. instrument,  see  Nev.  Session  Laws,  1866. 

For  Initiative-Referendum  amendment,  adopted  in  1904  and  for 
Taxation  amendment,  adopted  in  1906,  see  Constitutions  of  the  U.  S.  A. 
and  of  the  State  of  Nevada,  Carson  City,  1910. 

1909  (ibid). 

NEW  HAMPSHIRE 

No  amendment  since  the  last  given  by  Thorpe. 

N.  B.  References  are  to  the  paragraphs  as  numbered  in  the  unamended 
instrument  of  1792.  Paragraph  XI  having  dropped  out  in  1889,  all 
after  this  now  bear  official  "  article "  numbers  one  below  the  para- 
graph number. 

1910. 

NEW  JERSEY 

For  the  Election  Act  of  1807,  equivalent  to  a  change  in  the  Con- 
stitution, see  Elmer,  L.  Q.  C.,  in  Proceedings  of  the  New  Jersey  His- 
torical Society,  series  ii,  vol.  ii ;  and  compare  Laivs  of  the  State  of 
New  Jersey,  Trenton,  1821,  pp.  740-2. 

For  the  unamended  instrument  of  1844  see  Thorpe,  App.  p.  4186. 

For  amendments  adopted  in  1875,  see  Thorpe,  App.  p.  4201. 

For  article  IV,  sec.  7,  par.  2,  and  article  V,  sec.  12,  as  amended  in 
1897,  see  Thorpe,  pp.  2604  and  2608. 

1910. 

NEW  MEXICO 
For  the  instrument  of  1911,  see  Senate  Doc.,  6ist  Cong.,  no.  835. 


248  BIBLIOGRAPHICAL  NOTE  [64O 

The  reference  on  p.  2681  of  Thorpe  is  erroneous.     Cf.  p.  2687. 

NEW  YORK 

For  the  unamended  instrument  of   1894,   and   for  the  development 
since  then,  see  the  annual  New  York  Legislative  Manual. 
/pop  (ibid.,  1910). 

NORTH  CAROLINA 

For  amendments  to  the  instrument  of  1868,  adopted  in  1873,  see  N.  C. 
Session  Laws,  1872-73.  (For*fact  of  ratification  see  Appleton's  Annual 
Cyclopedia,  1873,  p.  554). 

For  the  unamended  instrument  of  1875,  see  N.  C.  Session  Laws, 
1876-77- 

For  amendments  adopted  1880,  see  N.  C.  Session  Laws,  1879. 

For  amendment  adopted  1888,  see  N.  C.  Session  Laws  1887. 

For  amendments  adopted  1900,  see  Revisal  of  1908  of  North  Caro- 
lina, Charleston,  1908. 

1908  (Yearbook  of  Legislation}. 

NORTH  DAKOTA 

The  dates  of  the  six  amendments  given  by  Thorpe  are  as  follows : 
1894,  I;  1898,  II,  121,  127;  1900,  III,  76;  IV,  179;  1904.  V  (now 
known  as  VII),  176;  1906,  VI,  162  (not  in  existing  official  instrument). 
Compare  N.  D.  Session  Laws. 

For  present  amendments  1906,  V,  215;  VI,  215;  VIII,  162;  1908, 
IX,  158;  X,  89,  see  North  Dakota  Legislative  Manual,  1909. 

For  amendments  to  sections  158  and  216,  adopted  in  1910,  see  N.  D. 
Session  Laws,  1909. 

1910. 

OHIO 

For  originals  of  amended  provisions  in  the  instrument  of  1851,  see 
Thorpe,  App.  pp.  4157-8.  Disregard  upper  half  of  p.  4157. 

Article  XVII  of  this  instrument,  as  given  on  p.  2937,  is  a  fragment  of 
an  Elections  amendment,  adopted  in  1905.  For  the  complete  article, 
see  The  General  Code  of  the  State  of  Ohio,  Cincinnati,  1910. 

1910. 

OKLAHOMA 

For  the  Constitution,  see  Thorpe,  App.  p.  4271. 
For  the  "  Grandfather  "  amendment,  adopted  in  1910,  see  ? 
1910. 

OREGON 

For  amendments  adopted  in  1908  see  Constitution  of  the  State  of 
Oregon  and  Official  Register,  Salem,  1908. 

For  those  adopted  in  1910  see  marked  copy  of  Referendum  Pamphlet 
of  1910,  in  N.  Y.  Bar  Association  Library. 

1910  (ibid). 

PENNSYLVANIA 

For  originals  of  amended  provisions  of  instrument  of  1873,  see 
Thorpe,  p.  3152. 

For  amendments  adopted  in  1909,  see  Supplement  to  Purdon's  Digest 
of  the  Statute  Law  of  the  State  of  Pennsylvania,  Philadelphia,  1910. 

1910. 


641]  BIBLIOGRAPHICAL  NOTE 

RHODE  ISLAND 

For  articles  XIII,  XIV  and  XV  of  amendments,  adopted  in  1909, 
see  R.  I.  Session  Laws,  1909. 
1910. 

SOUTH  CAROLINA 

For  amendments  to  the  instrument  of  1868,  adopted  subsequent  to 
1880,  see  Code  of  Laws  of  South  Carolina,  Columbia,  1902. 

For  amendments  to  the  instrument  of  1895,  adopted  prior  to  1902, 
see  ibid. 

For  amendments  adopted  in  1903,  1905,  1907,  1908,  1909,  see  Session 
Laws  of  those  years. 

1910  (Session  Laws,  1910). 

SOUTH  DAKOTA 

For  amendments  IX,  7;  V,  23;  XI,   i;  XXI;  adopted' in  1906,  see 
S.  D.  Session  Laws,  1905,  checked  by  Yearbook  of  Legislation. 
1908  (ibid). 

TENNESSEE 

No  amendments  to  instrument  of  1870. 
19 10. 

TEXAS 

For  an  amendment  to  the  instrument  of  1845,  adopted  in  1850,  see 
A  Digest  of  the  Laws  of  Texas,  Phila.,  1850. 

The  amendments  to  the  instrument  of  1868,  stated  by  Thorpe  to 
have  teen  ratified  in  1873,  were  really  ratified  in  1874.  (Tex.  Session 
Laws,  1874). 

For  amendment  to  article  VII,  adopted  in  1908,  see  Tex.  Session 
Laws,  1907,  checked  by  Yearbook  of  Legislation. 

1908  (ibid). 

UTAH 

For  amendments  adopted  in  1906,  see  The  Compiled  Laws  of  the 
State  of  Utah,  Salt  Lake  City,  1907. 

For  Taxation  amendment,  adopted  in  1908,  see  Utah  Session  Laws, 
1907,  checked  by  Yearbook  of  Legislation,  1908. 

1908  (ibid). 

VERMONT 

No  amendment  since  the  last  given  by  Thorpe. 
1910. 

VIRGINIA 

For  a  change  in  the  suffrage  requirement  in  1785,  equivalent  to  a 
change  in  the  Constitution,  see  Chandler,  J.  A.  C.,  History  of  Suffrage 
in  Virginia. 

For  an  amendment  to  the  instrument  of  1870,  adopted  in  1894,  see 
Brenaman,  J.  N.,  History  of  Virginia  Conventions,  1902. 

For  amendments  adopted  in  1901,  see  Va.  Session  Laws,  1899-1900. 

For  County  Officers  amendment  to  the  instrument  of  1902,  adopted 
in  1910,  see  Va.  Session  Laws,  1908. 

1910. 


250  BIBLIOGRAPHICAL  NOTE 

WASHINGTON 

For  Religious  Freedom  amendment,  adopted  in  1904,  see  Remington 
and  Ballinger's  Codes  and  Statutes  of  Washington,  Seattle,  1910. 

.Kor  Woman's  Suffrage  and  Gubernatorial  Succession  amendments, 
adopted  in  1910,  see  ibid.,  marked  copy  in  N.  Y.  Bar  Association 
Library. 

1910  (ibid). 

WEST  VIRGINIA 

For  the  unamended  instrument  of  1876,  see  Thorpe,  App.  p.  4235. 
Note  that  in  the  instrument  as  amended,  pp.  4033  et  seq.,  the  word 
"  not "  has  been  inserted  into  article  VI,  sec.  6. 

Amendments  are  to  be  found  partly  in  pp.  4033-63,  and  partly  in 
pp.  4063-4. 

1908  (The  Code  of  West  Virginia,  St.  Paul,  1906,  Supplement,  1909). 

WISCONSIN 

For  Special  Legislation  amendment,  as  originally  adopted  in  1871, 
see  Wisconsin  Statutes  of  1898,  Chicago,  1898. 

For  amendments  adopted  in  1908,  see  Wise.  Session  Laws,  1907, 
checked  by  Yearbook  of  Legislation,  1908. 

1908  (ibid). 

WYOMING 

Sections   13-21   of  article  VI   are  officially  numbered   "  Elections ", 
sees.  1-9  (Revised  Statutes^  of  Wyoming,  Laramie,  1899). 
1908  (Yearbook  of  Legislation). 


VITA 


THE  writer  was  born  in  Colorado  Springs,  Colorado, 
January  31,  1875.  He  studied  at  Harvard,  1894-98,  and  a: 
Columbia,  1906-11;  in  the  latter  University  under  Pro- 
fessors Burgess,  Goodnow,  Dunning,  Robinson,  Shotwell 
and  Beard.  He  holds  the  following  degrees:  A.  B.,  Har- 
vard, 1897;  A.  M.,  Harvard,  1898.  He  was  instructor  in 
the  Philadelphia  School  of  Pedagogy,  1898-1902,  since 
which  time  he  has  been  engaged  in  independent  tutoring  in 
New  York  City. 

251 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN  INITIAL  FINE  OF  25  CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  SO  CENTS  ON  THE  FOURTH 
DAY  AND  TO  St.OO  Ofl  THf  «^g"Ti-i  DAY 
OVER 


DEC  17  19 


REC'D  LD 


JUL5    ^£2 


14Fcb'50| 


NO 


REC'D  LD 


LD  21-100m-7,'33 


YC  088 


• 


